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BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Mortgage Loan Seller,
MIDLAND LOAN SERVICES, INC.,
Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer,
and
WELLS FARGO BANK MINNESOTA, n.a.,
Trustee and REMIC Administrator,
---------------------------------
SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
(Amending and Restating the Amended and Restated Pooling and Servicing
Agreement dated as of February 1, 2000 which had amended and restated
the Pooling and Servicing Agreement dated as of December 1, 1999)
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Commercial Mortgage Pass-Through Certificates
Series 2000-1
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
SECTION 1.01 Defined Terms..................................................
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool...........
SECTION 1.03 Incorporation of Preliminary Statement.........................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans...................................
SECTION 2.02 Acceptance of REMIC I by Trustee...............................
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations
and Warranties.................................................
SECTION 2.04 Representations and Warranties of the Depositor................
SECTION 2.05 Representations and Warranties of the Mortgage Loan
Seller.........................................................
SECTION 2.06 Representations and Warranties of the Master Servicer..........
SECTION 2.07 Representations and Warranties of the Special Servicer.........
SECTION 2.08 Representations and Warranties of the Trustee and the
REMIC Administrator............................................
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests......................................
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee........................................
SECTION 2.11 Issuance of the Class R-II Certificates; Creation of the
REMIC II Regular Interests.....................................
SECTION 2.12 Conveyance of the Class MG, Class MH, Class MJ, Class MK
and Class MX Uncertificated Interests; Acceptance of
such Interests by the Trustee..................................
SECTION 2.13 Issuance of the Class R-III Certificates; Creation of
the REMIC III Regular Interests................................
SECTION 2.14 Conveyance of the Class MA-1, Class MA-2, Class MA-3,
Class MA-4, Class MA-1C and Class MA-2C Uncertificated
Interests; Acceptance of such Interests by the Trustee.........
SECTION 2.15 Issuance of the Class R-IIIU Certificates; Creation of
the REMIC IIIU Regular Interests...............................
SECTION 2.16 Conveyance of the Class UA-1A, Class UA-2A, Class UA-1B,
Class UA-2B, Class UA-3B, Class UX, Class MB, Class MC
and Class MD Uncertificated Interests; Acceptance of
such Interests by the Trustee..................................
SECTION 2.17 Issuance of the REMIC IV Certificates..........................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans...........................
SECTION 3.02 Collection of Mortgage Loan Payments...........................
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts.......
SECTION 3.04 Certificate Account, the Distribution Account, the
REMIC II Distribution Account, the REMIC III
Distribution Account, the REMIC IIIU Distribution
Account and the REMIC IV Distribution Account..................
SECTION 3.05 Permitted Withdrawals From the Certificate Account and
the Distribution Account.......................................
SECTION 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account and the REO Account...................
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..........................................
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing..............................
SECTION 3.09 Realization Upon Defaulted Mortgage Loans......................
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files................
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances...........................
SECTION 3.12 Inspections; Collection of Financial Statements................
SECTION 3.13 Annual Statement as to Compliance..............................
SECTION 3.14 Reports by Independent Public Accountants......................
SECTION 3.15 Access to Certain Information..................................
SECTION 3.16 Title to REO Property; REO Account.............................
SECTION 3.17 Management of REO Property.....................................
SECTION 3.18 Sale of Defaulted Mortgage Loans and REO Properties............
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer...............................................
SECTION 3.20 Modifications, Waivers, Amendments and Consents................
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping...............................
SECTION 3.22 Sub-Servicing Agreements.......................................
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.....................
SECTION 3.24 Confidentiality................................................
SECTION 3.25 No Solicitation of Prepayments.................................
SECTION 3.26 Certain Matters with Respect to Loans Permitting
Defeasance, Franchise Loans and Certain Loans Permitting
Additional Debt................................................
SECTION 3.27 [RESERVED].....................................................
SECTION 3.28 Maintenance of Portfolio Mortgage Loan Environmental
Policy.........................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates..............................
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.......................
SECTION 4.03 P&I Advances...................................................
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.......................................................
SECTION 4.05 Interest Reserve Account.......................................
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates...............................................
SECTION 5.02 Registration of Transfer and Exchange of Certificates..........
SECTION 5.03 Book-Entry Certificates........................................
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates..............
SECTION 5.05 Persons Deemed Owners..........................................
SECTION 5.06 Certification by Certificate Owners............................
SECTION 5.07 Regarding the Identification of Certain
Certificateholders.............................................
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer and the REMIC
Administrator..................................................
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or the REMIC Administrator....................
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others.....................................................
SECTION 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign....................................
SECTION 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer, the Special Servicer and the REMIC
Administrator..................................................
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default..............................................
SECTION 7.02 Trustee to Act; Appointment of Successor.......................
SECTION 7.03 Notification to Certificateholders.............................
SECTION 7.04 Waiver of Events of Default....................................
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default...........
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee..............................................
SECTION 8.02 Certain Matters Affecting the Trustee..........................
SECTION 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.................................
SECTION 8.04 Trustee May Own Certificates...................................
SECTION 8.05 Fees of Trustee; Indemnification of Trustee....................
SECTION 8.06 Eligibility Requirements for Trustee...........................
SECTION 8.07 Resignation and Removal of the Trustee.........................
SECTION 8.08 Successor Trustee..............................................
SECTION 8.09 Merger or Consolidation of Trustee.............................
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee..................
SECTION 8.11 Appointment of Custodians......................................
SECTION 8.12 Access to Certain Information..................................
SECTION 8.13 Filings with the Securities and Exchange Commission............
SECTION 8.14 Year 2000 Compliance...........................................
SECTION 8.15 Maintenance of Mortgage File...................................
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.................................................
SECTION 9.02 Additional Termination Requirements............................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration...........................................
SECTION 10.02 Depositor, Master Servicer, Special Servicer and Trustee
to Cooperate with REMIC Administrator..........................
SECTION 10.03 Fees of the REMIC Administrator................................
SECTION 10.04 Use of Agents..................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment......................................................
SECTION 11.02 Recordation of Agreement; Counterparts.........................
SECTION 11.03 Limitation on Rights of Certificateholders.....................
SECTION 11.04 Governing Law..................................................
SECTION 11.05 Notices........................................................
SECTION 11.06 Severability of Provisions.....................................
SECTION 11.07 Successors and Assigns; Beneficiaries..........................
SECTION 11.08 Article and Section Headings...................................
SECTION 11.09 Notices to and from Rating Agencies............................
SECTION 11.10 Requests for Information; Standing Requests....................
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1A Certificate
EXHIBIT A-2 Form of Class A-2A Certificate
EXHIBIT A-3 Form of Class A-1B Certificate
EXHIBIT A-4 Form of Class A-2B Certificate
EXHIBIT A-5 Form of Class A-3B Certificate
EXHIBIT A-6 Form of Class X Certificate
EXHIBIT A-7 Form of Class B Certificate
EXHIBIT A-8 Form of Class C Certificate
EXHIBIT A-9 Form of Class D Certificate
EXHIBIT A-10 Form of Class E Certificate
EXHIBIT A-11 Form of Class F Certificate
EXHIBIT A-12 Form of Class G Certificate
EXHIBIT A-13 Form of Class H Certificate
EXHIBIT A-14 Form of Class K Certificate
EXHIBIT A-15 Form of Class L Certificate
EXHIBIT A-16 Form of Class M Certificate
EXHIBIT A-17 Form of Class N Certificate
EXHIBIT A-18 Form of Class R-I Certificate
EXHIBIT A-19 Form of Class R-II Certificate
EXHIBIT A-20 Form of Class R-III Certificate
EXHIBIT A-21 Form of Class R-IIIU Certificate
EXHIBIT A-22 Form of Class R-IV Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of REO Status Report
EXHIBIT F Form of ERISA Representation Letter
EXHIBIT G Form of Interim Custodial Certification
EXHIBIT H Form of Final Custodial Certification
EXHIBIT I Form of Operating Statement Analysis Report
EXHIBIT J Servicer Watch List
EXHIBIT K Operating Statement Analysis Worksheet
EXHIBIT L Environmental Policy
EXHIBIT M Request for Review
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Schedule of Mortgage Loans Under Section 3.08(e)
SCHEDULE III Sub-Servicing Agreements in Effect as of the Original
Closing Date
SCHEDULE P9 Exceptions to Portfolio Mortgage Loan Representation (ix)
SCHEDULE P41(A) Exceptions to Portfolio Mortgage Loan Representation (xli)(A)
SCHEDULE P41(B) Exceptions to Portfolio Mortgage Loan Representation (xli)(B)
SCHEDULE P41(K) Exceptions to Portfolio Mortgage Loan Representation (xli)(K)
SCHEDULE P59 Exceptions to Portfolio Mortgage Loan Representation (lix)
SCHEDULE P61 Exceptions to Portfolio Mortgage Loan Representation (lxi)
SCHEDULE C9 Exceptions to Conduit Mortgage Loan Representation (ix)
SCHEDULE C23 Exceptions to Conduit Mortgage Loan Representation (xxiii)
SCHEDULE C43 Exceptions to Conduit Mortgage Loan Representation (xliii)
SCHEDULE C44 Exceptions to Conduit Mortgage Loan Representation (xliv)
SCHEDULE C45 Exceptions to Conduit Mortgage Loan Representation (xlv)
SCHEDULE C46(C) Exceptions to Conduit Mortgage Loan Representation (xlvi)(C)
SCHEDULE C48(A) Exceptions to Conduit Mortgage Loan Representation (xlviii)(A)
SCHEDULE C48(B) Exceptions to Conduit Mortgage Loan Representation (xlviii)(B)
SCHEDULE C48(C) Exceptions to Conduit Mortgage Loan Representation (xlviii)(C)
SCHEDULE C48(G) Exceptions to Conduit Mortgage Loan Representation (xlviii)(G)
SCHEDULE C48(H) Exceptions to Conduit Mortgage Loan Representation (xlviii)(H)
SCHEDULE C48(J) Exceptions to Conduit Mortgage Loan Representation (xlviii)(J)
This Second Amended and Restated Pooling and Servicing Agreement
(this "Agreement"), is dated and effective as of September 1, 2000, among BANC
OF AMERICA COMMERCIAL MORTGAGE INC. (successor in interest to NationsLink
Funding Corporation), as Depositor, BANK OF AMERICA, N.A., as Mortgage Loan
Seller, MIDLAND LOAN SERVICES, INC., as Master Servicer, GMAC COMMERCIAL
MORTGAGE CORPORATION, as Special Servicer, and WELLS FARGO BANK MINNESOTA, N.A.
(successor in interest to Norwest Bank Minnesota, National Association), as
Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
This Agreement, dated and effective as of September 1, 2000, amends
and restates the Amended and Restated Pooling and Servicing Agreement, dated as
of February 1, 2000 (the "First Amended Pooling Agreement") which had amended
and restated the Pooling and Servicing Agreement, dated as of December 1, 1999
among Banc of America Commercial Mortgage Inc., as Depositor, Bank of America,
N.A., as Mortgage Loan Seller, Midland Loan Services Inc., as Master Servicer,
GMAC Commercial Mortgage Corporation, as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and as REMIC Administrator (the "Original Pooling
Agreement"). This Agreement is being executed at the direction of the holders of
Certificates entitled to 100% of the Voting Rights allocated to the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-1C, Class A-2C, Class B, Class C, Class
D, Class E, Class F and Class X Certificates, as issued under the Original
Pooling Agreement (the "Original Certificates"), and with the agreement of all
of the parties hereto, for the purpose of (i) causing all such Class A-1, Class
A-2, Class A-3 and Class A-4 Certificates to be restructured and to be
redesignated as the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B
Certificates, (ii) resetting the principal balances of and/or the pass-through
rates of the Class A-1A, Class A-2A, Class A-1B, Class A-2B and Class A-3B
Certificates (as so redesignated), and the Class B, Class C and Class D
Certificates, (iii) making, in connection with such restructuring, two
additional REMIC elections with respect to the Trust Fund and (iv) providing for
the book-entry registration of the newly created Classes of Certificates. For
the avoidance of doubt, it is noted that the first Distribution Date on the New
Certificates hereunder shall be the Distribution Date in October 2000, and the
changes made hereby are effective in respect of such Distribution Date for the
full related Interest Accrual Period that began September 1, 2000.
The Depositor issued the Original Certificates on December 1, 1999
pursuant to the Original Pooling Agreement. Interests in the Trust established
by the Original Pooling Agreement corresponding to the Class A-1A, Class A-2A,
Class A-1B, Class A-2B, Class A-3B, Class B, Class C, Class D and the Class X
Certificates being issued under this Agreement (the "New Certificates") were
issued to the Mortgage Loan Seller in partial consideration for the Mortgage
Loans. Pursuant to this amendment, effective on the Second Sequel Closing Date,
the Mortgage Loan Seller will transfer such interests to the Depositor, and the
Depositor will transfer such interests to the Trustee in exchange for certain
uncertificated interests, the New Certificates and the Class R-IIIU and Class
R-IV Certificates. No changes to the First Amended Pooling Agreement are made
hereby, with respect to the Class G, Class H, and Class K Certificates (the
"Unaffected REMIC III Certificates") and no changes to the Original Pooling
Agreement are made hereby with respect to the Class E, Class F, Class L, Class M
and Class N Certificates (the "Unaffected REMIC II Certificates" and,
collectively with the Unaffected REMIC III Certificates, the "Unaffected
Certificates"), or to the Class R-I, Class R-II and Class R-III Certificates,
and in this and every other respect, except as expressly amended hereby, the
Original Pooling Agreement as amended and restated by the First Amended Pooling
Agreement, continues in full force and effect as amended and restated hereby.
The New Certificates, together with the Unaffected Certificates and the Residual
Certificates, collectively, evidence the entire beneficial ownership interest in
the Trust.
It is the intention of the parties, and each of the parties hereto
acknowledges, that this amendment and restatement of the Original Pooling
Agreement, as amended and restated by the First Amended Pooling Agreement shall
not in any way affect the rights or obligations of a Sub-Servicer under the
Amended and Restated Master Subservicing Agreement for Securitization
Transactions, dated as of March 25, 1998 among Bank of America, N.A. (successor
interest to NationsBank, N.A.), Bankers Mutual, (successor in interest to
Bankers Mutual Mortgage Inc.), Berkshire Mortgage Finance Corporation, First
Security Bank, N.A., L.J. Melody & Company, Midland Loan Services, Inc.
(successor in interest to Midland Loan Services, L.P.), Patrician Financial
Company Limited Partnership and Prudential MultiFamily Mortgage Inc. (successor
in interest to Washington Mortgage Financial Group. Ltd.), as supplemented by
Sub-Servicer Addition Agreements dated as of September 25, 1998 executed by ARCS
Commercial Mortgage Co., L.P., a California Limited Partnership, and Bank of
America, N.A. (successor in interest to Bank of America NT&SA), and as made
applicable to the securitization transaction contemplated by this Agreement by
the related Confirmation, dated as of December 21, 1999, executed by the
Sub-Servicers listed on Schedule III.
As provided herein, the Trustee will elect that the Trust Fund be
treated for federal income tax purposes as five separate real estate mortgage
investment conduits ("REMIC I," "REMIC II," "REMIC III," "REMIC IIIU" and "REMIC
IV" respectively). The Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class
A-3B, Class B, Class C, Class D and Class X Certificates constitute "regular
interests" in REMIC IV, and the Class R-IV Certificates constitute the sole
Class of "residual interest" in REMIC IV for purposes of the REMIC Provisions.
The Class UA-1A, Class UA-2A, Class UA-1B, Class UA-2B, and Class UA-3B
Uncertificated Interests constitute "regular interests" in REMIC IIIU, and the
Class R-IIIU Certificates constitute the sole Class of "residual interest" in
REMIC IIIU for purposes of the REMIC Provisions. The Class G, Class H and Class
K Certificates and the Class UX Uncertificated Interest constitute "regular
interests" in REMIC III, and the Class R-III Certificates constitute the sole
Class of "residual interest" in REMIC III for purposes of the REMIC Provisions.
The Class E, Class F, Class L, Class M and Class N Certificates and the Class
MA-1, Class MA-2, Class MA-3, Class MA-4, Class MA-1C, Class MA-2C, Class MB,
Class MC, Class MD, Class MG, Class MH, Class MJ, Class MK and Class MX
Uncertificated Interests constitute "regular interests" in REMIC II, and the
Class R-II Certificates constitute the sole Class of "residual interest" in
REMIC II for purposes of the REMIC Provisions. The Class LA-1, Class LA-2, Class
LA-3, Class LA-4, Class LA-1C, Class LA-2C, Class LB, Class LC, Class LD, Class
LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM and
Class LN Uncertificated Interests constitute "regular interests" in REMIC I and
the Class R-I Certificates constitute the sole Class of "residual interest" in
REMIC I for purposes of the REMIC Provisions.
The following table sets forth the designation, the Pass-Through
Rate, and the Initial Class Principal Balance for each of the Classes of Regular
Certificates as of the Second Sequel Closing Date:
Initial Class
Designation Issuing REMIC Pass-Through Rate Principal Balance
----------- ------------- ----------------- -----------------
Class A-1A IV 7.1090% per annum $153,230,577
Class A-2A IV 7.3330% per annum(1) $299,000,640
Class A-1B IV 6.8010% per annum $55,591,451
Class A-2B IV 7.2570% per annum(1) $38,390,866
Class A-3B IV 7.4180% per annum(1) $19,967,220
Class X IV Variable(2) N/A(3)
Class B IV 7.5120% per annum(1) $40,999,766
Class C IV 7.6510% per annum(1) $35,142,657
Class D IV 7.6463% per annum(4) $11,714,219
Class E II 7.7488% per annum(5) $27,333,177
Class F II 7.7488% per annum(5) $11,714,219
Class G III 6.85% per annum $11,714,219
Class H III 6.85% per annum $19,523,698 (6)
Class K III 6.85% per annum $3,904,740
Class L II 6.00% per annum $15,618,958
Class M II 6.00% per annum $7,809,479
Class N II 6.00% per annum $19,523,699
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(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-2A, Class
A-2B, Class A-3B and Class B and Class C Certificates for each
Distribution Date shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for such Distribution Date.
(2) Calculated in accordance with the definition of "Class X Pass-Through
Rate".
(3) The Class X Certificates will not have a Class Principal Balance; rather,
such Class of Certificates will accrue interest as provided herein on the
Class X Notional Amount.
(4) Initial Pass-Through Rate. The Pass-Through Rate for the Class D
Certificates for each Distribution Date shall equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus 0.1025% per
annum.
(5) Initial Pass-Through Rate. The Pass-Through Rate for the Class E and Class
F Certificates for each Distribution Date shall equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date.
(6) The Original Class Principal Balances of the original Class H and Class J
Certificates were $13,666,589 and $5,857,109, respectively. On the First
Sequel Closing Date, the original Class H and Class J Certificates were
exchanged for the Class H Certificates having the Initial Class Principal
Balance shown above, which represents the sum of such Class Principal
Balances of such original Class H and J Certificates.
The following table sets forth the designation, the initial
Uncertificated Principal Balance and per annum rates of interest for the REMIC I
Regular Interests as of the Second Sequel Closing Date:
REMIC I Initial
Regular Interest REMIC I Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class LA-1 (1) $49,633,396
Class LA-2 (1) $29,354,604
Class LA-3 (1) $51,733,026
Class LA-4 (1) $34,553,195
Class LA-1C (1) $85,948,613
Class LA-2C (1) $332,891,723
Class LB (1) $40,999,766
Class LC (1) $35,142,657
Class LD (1) $11,714,219
Class LE (1) $27,333,177
Class LF (1) $11,714,219
Class LG (1) $11,714,219
Class LH (1) $13,666,589
Class LJ (1) $5,857,109
Class LK (1) $3,904,740
Class LL (1) $15,618,958
Class LM (1) $7,809,479
Class LN (1) $19,523,699
- ---------------------------------
(1) The REMIC I Remittance Rate for each Class of REMIC I Regular Interests is
the Weighted Average Adjusted Net Mortgage Rate.
The following table sets forth the designation, the initial
Uncertificated Principal Balance and per annum rates of interest for the REMIC
II Uncertificated Regular Interests as of the Second Sequel Closing Date:
REMIC II Uncertificated
Regular Interest REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class MA-1 (1) $49,633,396
Class MA-2 (1) $29,354,064
Class MA-3 (1) $51,733,026
Class MA-4 (1) $34,553,195
Class MA-1C (1) $85,948,613
Class MA-2C (1) $332,891,723
Class MB (1) 40,999,766
Class MC (1) 35,142,657
Class MD (1) 11,714,219
Class MG (1) $11,714,219
Class MH (1) $13,666,589
Class MJ (1) $5,857,109
Class MK (1) $3,904,740
Class MX (2) (3)
- ---------------------------------
(1) The REMIC II Remittance Rate for each Class of REMIC II Regular Interests
(other than the Class MX Uncertificated Interest) is the Weighted Average
Adjusted Net Mortgage Rate.
(2) The Pass-Through Rate for the Class MX Uncertificated Regular Interest is
the Class MX Pass-Through Rate.
(3) The Class MX Uncertificated Regular Interest will not have an
Uncertificated Principal Balance; rather such Class of REMIC II
Uncertificated Regular Interests will receive interest as provided herein
on the Class MX Notional Amount.
The following table sets forth the designation, the initial
Uncertificated Principal Balance and per annum rate of interest for the REMIC
III Uncertificated Regular Interest as of the Second Sequel Closing Date:
REMIC III Uncertificated
Regular Interest Initial Uncertificated
Designation REMIC III Remittance Rate Principal Balance
----------- ------------------------- -----------------
Class UX (1) (2)
- ---------------------------------
(1) The Pass-Through Rate for the Class UX Uncertificated Regular Interest is
the Class UX Pass-Through Rate.
(2) The Class UX Uncertificated Regular Interest will not have an
Uncertificated Principal Balance; rather, such Class of REMIC III
Uncertificated Regular Interest will receive interest as provided herein
on the Class UX Notional Amount.
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
IIIU Regular Interests as of the Second Sequel Closing Date:
REMIC IIIU
Regular Interest Initial Uncertificated
Designation REMIC IIIU Remittance Rate Principal Balance
----------- -------------------------- -----------------
Class UA-1A (1) $153,230,577
Class UA-2A (1) $299,000,640
Class UA-1B (1) $55,591,451
Class UA-2B (1) $38,390,866
Class UA-3B (1) $19,967,220
- ---------------------------------
(1) The REMIC IIIU Remittance Rate for each Class of REMIC IIIU Regular
Interests is the Weighted Average Adjusted Net Mortgage Rate.
The Class R-I, Class R-II, Class R-III, Class R-IIIU and Class R-IV
Certificates will be Residual Certificates bearing no Pass-Through Rate and
having no initial Certificate Principal Balances.
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
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": As defined in clause (iii) of the definition of
"Mortgage Loan Schedule".
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates, for any Distribution Date, one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months) at the Pass-Through
Rate applicable to such Class of Certificates for such Distribution Date,
accrued on the related Class Principal Balance or Class Notional Amount, as the
case may be, of such Class of Regular Certificates outstanding immediately prior
to such Distribution Date. The Accrued Certificate Interest in respect of any
Class of Regular Certificates for any Distribution Date shall be deemed to have
accrued during the applicable Interest Accrual Period.
"Actual/360 Basis": As defined in clause (iii) of the definition of
"Mortgage Loan Schedule".
"Actual 365/360 Basis": As defined in clause (iii) of the definition
of "Mortgage Loan Schedule".
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Regular
Certificateholders' receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan or
REO Loan, for any Distribution Date, the annualized rate at which interest would
have to accrue thereon on a 30/360 Basis during the most recently ended calendar
month in order to produce the actual amount of interest accrued (or, if such
Mortgage Loan or REO Loan, as the case may be, is prepaid, in whole or in part,
or otherwise liquidated during such calendar month, that otherwise would have
accrued) in respect of such Mortgage Loan or REO Loan, as the case may be, at
the related Net Mortgage Rate in effect for such Mortgage Loan or REO Loan
during such calendar month. Such rate shall be calculated by multiplying (i) the
Net Mortgage Rate by (ii) the actual number of days of accrued interest for the
related period for such Mortgage Loan, divided by 30; provided, however, that
the months of December (other than the month of December in a year preceding a
leap year in the case of an Actual/360 Basis Mortgage Loan), January and
February shall be treated as having 30 days.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, being the sum of the
related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(f) or Section 4.03(d), as applicable.
"Adverse REMIC Event": With respect to each of REMIC I, REMIC II,
REMIC III, REMIC IIIU and REMIC IV, either (i) the endangerment of the status of
such REMIC as a REMIC or (ii), except as permitted by Section 3.17(a), the
imposition of a tax upon such REMIC or any of its assets or transactions
(including, without limitation, the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on certain contributions set forth in
Section 860G(d) of the Code).
"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 the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of the State of New York, (b) the laws of the
states in which the Corporate Trust Office of the Trustee and the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located,
(c) the laws of the states in which any Mortgage Loan documents are held and/or
any REO Properties are located, (d) such other state and local law whose
applicability shall have been brought to the attention of the REMIC
Administrator by either (i) an Opinion of Counsel delivered to it or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state law, and (e) such other state or local law as to which the REMIC
Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, a limited appraisal and a summary report)
that indicates the "market value" of the subject property, as defined in 12
C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or by the
Special Servicer, in the case of a limited appraisal and summary report with
respect to a Mortgage Loan or an REO Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of (i) the Determination Date immediately
following the later of (a) the date on which the most recent Appraisal that
meets the requirements of Section 3.19(b) in respect of such Required Appraisal
Loan was obtained by the Special Servicer, and (b) the earliest of the relevant
dates in respect of such Required Appraisal Loan specified in the first sentence
of Section 3.19(b) hereof, and (ii) as of each Determination Date thereafter)
equal to the excess, if any, of (x) the sum of (i) the Stated Principal Balance
of such Required Appraisal Loan, (ii) to the extent not previously advanced by
or on behalf of the Master Servicer or the Trustee, all accrued and unpaid
interest on such Required Appraisal Loan through the most recent Due Date prior
to such Determination Date at a per annum rate equal to the sum of the related
Net Mortgage Rate and the Trustee Fee Rate, (iii) all accrued but unpaid Master
Servicing Fees and Special Servicing Fees in respect of such Required Appraisal
Loan, (iv) all related unreimbursed Advances made by or on behalf of the Master
Servicer, the Special Servicer or the Trustee in respect of such Required
Appraisal Loan, together with all unpaid Advance Interest accrued on such
Advances, and (v) all currently due but unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property (net of any Escrow Payments or
other reserves held by the Master Servicer or the Special Servicer with respect
to any such item and net of any reserves for debt service coverage, capital
expenditures and replacement reserves), over (y) 90% of an amount equal to (i)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof, net of (ii) the amount of any liens on such
property (other than in respect of items described in clause (x)(v) above) that
are prior to the lien of the Required Appraisal Loan. Notwithstanding the
foregoing, if an Appraisal is required to be obtained pursuant to Section
3.19(b) but has not been received within the time period contemplated by such
section, then until the date such Appraisal is obtained the "Appraisal Reduction
Amount" for the subject Required Appraisal Loan will be deemed to equal 25% of
the Stated Principal Balance of such Required Appraisal Loan; provided that upon
receipt of an Appraisal acceptable for purposes of Section 3.19(b) hereof, the
Appraisal Reduction Amount for such Required Appraisal Loan will be recalculated
in accordance with the preceding sentence.
"Appraised Value": As of any date of determination, the appraised
value of a Mortgaged Property based upon the most recent Appraisal obtained
pursuant to this Agreement.
"Assignment Documents": With respect to any Mortgage Loan, any of
the following:
(i) the documents identified in clause (iii) of the definition of
Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(ii) the documents identified in clause (v) of the definition of
Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(iii) any UCC-2 or UCC-3 filing identified in clause (xi) of the
definition of Mortgage File, including any intervening UCC-2 or UCC-3 from
each assignee of record prior to the Trustee; or
(iv) an original assignment of any related Security Agreement (if
such item is a document separate from the related Mortgage) executed by
the most recent assignee of record thereof prior to the Trustee or, if
none, by the originator, in favor of the Trustee (in such capacity),
together with any collateral therefor (including without limitation
securities) in the Mortgage Loan Seller's possession, which assignment may
be included as part of the corresponding assignment of the related
Mortgage referred to in clause (iii) of the definition of Mortgage File.
"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, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Final Distribution Date": As defined in Section 4.01(c).
"Assumed Monthly 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 the end of the Collection Period in which such Stated Maturity Date
occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly Payment (other
than a delinquent Balloon Payment) is due for such Due Date, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the amount that would have been due in respect of such
Mortgage Loan on such Due Date if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled maturity date (as such
terms and amortization schedule may have been modified, and such maturity date
may have been extended, 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 Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to any REO Loan, for any Due Date
therefor as of which the related REO Property remains part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment that was due (or,
in the case of a Balloon Mortgage Loan described in the preceding sentence of
this definition, the Assumed Monthly Payment that was deemed due) in respect of
the related Mortgage Loan on the last Due Date prior to its becoming an REO
Loan.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the balance on deposit in the Distribution Account
as of 11:30 a.m. (New York City time) on such Distribution Date (or such later
time on such date as of which distributions are made on the Certificates),
including, without limitation, if and to the extent on deposit therein as of
such time, the Master Servicer Remittance Amount for the related Master Servicer
Remittance Date, any P&I Advances made by the Master Servicer or the Trustee to
cover uncollected Monthly Payments due and/or Assumed Monthly Payments deemed
due during the related Collection Period, any payments made by the Master
Servicer to cover Prepayment Interest Shortfalls incurred during the related
Collection Period, and for the Distribution Date occurring in each March, the
related Withheld Amounts remitted to the Certificate Account pursuant to Section
4.05, net of (b) any portion of the amounts described in clause (a) of this
definition that represents one or more of the following: (i) collected Monthly
Payments that are due on a Due Date following the end of the related Collection
Period, (ii) any payments of principal (including, without limitation, Principal
Prepayments) and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period, (iii) Prepayment Premiums, (iv)
any amounts payable or reimbursable to any Person from the Distribution Account
pursuant to any of clauses (ii) through (vi) of Section 3.05(b), (v) any amounts
deposited in the Distribution Account in error, and (vi) with respect to each
Mortgage Loan which does not accrue interest on a 30/360 Basis and any
Distribution Date relating to the one month period preceding the Distribution
Date in each February (and in any January of a year which is not a leap year in
the case of an Actual/360 Basis Mortgage Loan), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that the Available
Distribution Amount for the Final Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(vi) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Original Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Monthly Payment due on
its Stated Maturity Date is at least two times larger than the Monthly Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bank": As defined in Section 2.08.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated September 14, 2000,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Minneapolis, Minnesota,
Pittsburgh, Pennsylvania, Los Angeles, California and the cities in which the
Primary Servicing Offices of the Master Servicer and Special Servicer and the
Corporate Trust Office of the Trustee 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 Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2000-1 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"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 "Midland
Loan Services, Inc., as Master Servicer, in trust for the registered holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, Certificate Account".
"Certificate Factor": With respect to any Class of Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues interest, which, as of any date of determination, is equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class X Notional Amount.
"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" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
or the Trustee or any Affiliate of any of them shall be deemed not to be
outstanding, and the Voting Rights to which any of them is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 11.01 or except in
connection with the Controlling Class exercising its rights under Section 3.23,
or unless such Persons collectively own an entire Class of Certificates and only
the Holders of such Class of Certificates are entitled to grant such consent,
approval or waiver. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether or not 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.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates, REMIC I Regular
Interests, REMIC II Uncertificated Regular Interests, REMIC III Uncertificated
Regular Interests or REMIC IIIU Regular Interests bearing the same alphabetical
and, if applicable, numerical Class designation.
"Class A Certificate": Any one of the Class A-1A, Class A-2A, Class
A-1B, Class A-2B or Class A-3B Certificates.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A per annum rate equal to 7.1090%.
"Class A-2A Certificate": Any one of the Certificates with a "Class
A-2A" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-2A Pass-Through Rate": A per annum rate equal to 7.3330%;
provided however, that the Class A-2A Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-1B Certificate": Any one of the Certificates with a "Class
A-1B" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-1B Pass-Through Rate": A per annum rate equal to 6.8010%.
"Class A-2B Certificate": Any one of the Certificates with a "Class
A-2B" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-2B Pass-Through Rate": A per annum rate equal to 7.2570%;
provided however, that the Class A-2B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-3B Certificate": Any one of the Certificates with a "Class
A-3B" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class A-3B Pass-Through Rate": A per annum rate equal to 7.4180%;
provided however, that the Class A-3B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 7.5120%;
provided however, that the Class B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 7.6510%;
provided however, that the Class C Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC IV for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date minus
0.1025% per annum.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Uncertificated Principal Balance of the Class LE
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class E Certificates.
"Class E Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class E Pass-Through Rate.
For the avoidance of doubt, the Class E Component Pass-Through Rate is zero.
"Class E Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Uncertificated Principal Balance of the Class LF
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class F Certificates.
"Class F Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class F Pass-Through Rate.
For the avoidance of doubt, the Class F Component Pass-Through Rate is zero.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to 6.85%.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to 6.85%.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 6.85%.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Uncertificated Principal Balance of the Class LL
Uncertificated Interest, which corresponds to the Certificate Principal Balance
of the Class L Certificates.
"Class L Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class L Pass-Through Rate.
"Class L Pass-Through Rate": A per annum rate equal to 6.00%.
"Class LA-1 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-3 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-4 Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-1C Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LA-2C Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LB Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LC Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LD Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LE Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LF Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LG Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LH Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LK Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LL Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LM Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class LN Uncertificated Interest": A regular interest in REMIC I
which is held as an asset of REMIC II and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Uncertificated Principal Balance of the Class LM
Uncertificated Interest, which corresponds to the Certificate Balance of the
Class M Certificates.
"Class M Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class M Pass-Through Rate.
"Class M Pass-Through Rate": A per annum rate equal to 6.00%.
"Class MA-1 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-2 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-3 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-4 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-1C Uncertificated Interest": A regular interest in REMIC
II which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MA-2C Uncertificated Interest": A regular interest in REMIC
II which is held as an asset of REMIC IIIU and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MB Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MB Uncertificated
Interest.
"Class MB Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class B Pass-Through
Rate.
"Class MB Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MC Component": That portion of Class X Notional Amount equal
to the Uncertificated Principal Balance of the Class MC Uncertificated Interest.
"Class MC Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class C Pass-Through
Rate.
"Class MC Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MD Component": That portion of Class X Notional Amount equal
to the Uncertificated Principal Balance of the Class MD Uncertificated Interest.
"Class MD Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class D Pass-Through
Rate.
"Class MD Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MG Component": That portion of the Class UX Notional Amount
equal to the Uncertificated Principal Balance of the Class MG Uncertificated
Interest.
"Class MG Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class G Pass-Through
Rate.
"Class MG Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MH Component": That portion of the Class UX Notional Amount
equal to the Uncertificated Principal Balance of the Class MH Uncertificated
Interest.
"Class MH Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class H Pass-Through
Rate.
"Class MH Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MJ Component": That portion of the Class UX Notional Amount
equal to the Uncertificated Principal Balance of the Class MJ Uncertificated
Interest.
"Class MJ Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class H Pass-Through
Rate.
"Class MJ Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MK Component": That portion of the Class UX Notional amount
equal to the Uncertificated Principal Balance of the Class MK Uncertificated
Interest.
"Class MK Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class K Pass-Through
Rate.
"Class MK Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class MX Component": That portion of the Class X Notional Amount
equal to the Class MX Notional Amount.
"Class MX Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class MX Uncertificated Interest collectively
accrues interest, which amount is equal to the aggregate of the Uncertificated
Principal Balances of the Class LE, Class LF, Class LL, Class LM, Class LN
Uncertificated Interests which correspond to the Certificate Principal Balances
of the Class E, Class F, Class L, Class M, Class N Certificates as of the
preceding Distribution Date (after giving effect to the distributions of
principal on such Distribution Date).
"Class MX Pass-Through Rate": With respect to any Distribution Date,
a rate per annum, rounded to eight decimal places, equal to the weighted average
of the Component Pass-Through Rates on the Class E Component, the Class F
Component, the Class L Component, the Class M Component, and the Class N
Component, weighted on the basis of their respective portions of the Class MX
Notional Amount.
"Class MX Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC III and having an initial Class Notional
Amount equal to the Class MX Notional Amount and per annum rate of interest
equal to the Class MX Pass-Through Rate.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Component": With respect to the Class MX Uncertificated
Interest, at any date of determination, that portion of the Class MX Notional
Amount equal to the Uncertificated Principal Balance of the Class LN
Uncertificated Interest, which corresponds to the Certificate Balance of the
Class N Certificates.
"Class N Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate minus the Class N Pass-Through Rate.
"Class N Pass-Through Rate": A per annum rate equal to 6.00%.
"Class Notional Amount": The Class UX Notional Amount, the Class MX
Notional Amount or the Class X Notional Amount.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates outstanding as of any date of
determination. As of the Original Closing Date, the Class Principal Balance of
each such Class of Certificates shall equal the Original Class Principal
Balance. On the First Sequel Closing Date, the certificates that had been
designated "Class H" and "Class J", under the Original Pooling Agreement were
redesignated and exchanged for the Class H Certificates, and the Class G and
Class K Certificates were reissued as of the First Sequel Closing Date. The
Class Principal Balance of such Certificates as of the Second Sequel Closing
Date shall equal the Initial Class Principal Balance thereof. As of the Second
Sequel Closing Date, the Certificates that had been designated "Class A-1",
"Class A-2", "Class A-3", "Class A-4", Class A-1C and Class A-2C under the
Original Pooling Agreement shall be redesignated the Class A-1A, Class A-2A,
Class A-1B, Class A-2B and Class A-3B Certificates, and the Class B, Class C and
Class D Certificates are reissued as of the Second Sequel Closing Date, and the
Class Principal Balance of each such Class of Certificates as of the Second
Sequel Closing Date shall equal the Initial Class Principal Balance thereof.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing the sole Class of "residual interest" in REMIC I
for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit
A-20 attached hereto and evidencing the sole Class of "residual interest" in
REMIC III for purposes of the REMIC Provisions.
"Class R-IIIU Certificate": Any one of the Certificates with a
"Class R-IIIU" designation on the face thereof, substantially in the form of
Exhibit A-21 attached hereto, and evidencing the sole Class of "residual
interest" in REMIC IIIU for purposes of the REMIC Provisions.
"Class R-IV Certificate": Any one of the Certificates with a "Class
R-IV" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class UA-1A Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-1A Uncertificated
Interest.
"Class UA-1A Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-1A Pass-Through Rate.
"Class UA-1A Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-2A Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-2A Uncertificated
Interest.
"Class UA-2A Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-2A Pass-Through Rate.
"Class UA-2A Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-1B Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-1B Uncertificated
Interest.
"Class UA-1B Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-1B Pass-Through Rate.
"Class UA-1B Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-2B Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-2B Uncertificated
Interest.
"Class UA-2B Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-2B Pass-Through Rate.
"Class UA-2B Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UA-3B Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-3B Uncertificated
Interest.
"Class UA-3B Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-3B Pass-Through Rate.
"Class UA-3B Uncertificated Interest": A regular interest in REMIC
IIIU which is held as an asset of REMIC IV and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class UX Notional Amount": The aggregate hypothetical or notional
principal balance on which the Class UX Uncertificated Interest collectively
accrues interest, which amount is equal to the aggregate of (i) the
Uncertificated Principal Balances of the Class MG, Class MH, Class MJ and Class
MK Uncertificated Interests and (ii) the Class MX Notional Amount, in each case
as of the preceding Distribution Date (after giving effect to the distribution
of principal on such Distribution Date).
"Class UX Pass-Through Rate": A rate per annum, rounded to eight
decimal places, equal to the weighted average of the Component Pass-Through
Rates on the Class MG Component, the Class MH Component, the Class MJ Component
and the Class MK Component and the Class MX Pass-Through Rate, weighted on the
basis of their respective portions of the Class MX Notional Amount.
"Class UX Uncertificated Interest": A regular interest in REMIC III
which is held as an asset of REMIC IV and having an initial Class Notional
Amount equal to the Class UX Notional Amount and a per annum rate of interest
equal to the Class UX Pass-Through Rate.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-6, and
evidencing a "regular interest" in REMIC IV for purposes of the REMIC
Provisions.
"Class X Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class X Certificates collectively accrue interest,
which amount is equal to the aggregate of the Uncertificated Principal Balances
of the Class UA-1A, Class UA-2A, Class UA-1B, Class UA-2B, Class UA-3B, Class
MB, Class MC and Class MD Uncertificated Interests and (ii) the Class UX
Notional Amount in each case as of the preceding Distribution Date (after giving
effect to the distributions of principal on such Distribution Date) in each
case.
"Class X Pass-Through Rate": A rate per annum, rounded to eight
decimal places, equal to the weighted average of the Component Pass-Through
Rates on the Class UA-1A Component, Class UA-2A Component, Class UA-1B
Component, Class UA-2B Component, Class UA-3B Component, Class MB Component,
Class MC Component and Class MD Component and the Class UX Pass-Through Rate,
weighted on the basis of their respective portions of the Class X Notional
Amount or the Class UX Notional Amount.
"CMSA": The Commercial Mortgage Securities Association (formerly the
Commercial Real Estate Secondary Market and Securitization Association, the
"CSSA") or any successor organization.
"CMSA Bond Level File": That file made available by the Trustee
under Section 4.02(a).
"CMSA Collateral File": That file made available by the Trustee
under Section 4.02(a).
"CMSA Financial File": That file to be delivered by the Master
Servicer under Section 4.02(b) and made available by the Trustee under Section
4.02(a).
"CMSA Loan Periodic Update File": That file delivered by the Master
Servicer under Section 4.02(b) and made available by the Trustee under Section
4.02(a), as set forth in Exhibit 1 to the Confirmation dated December 21, 1999.
"CMSA Property File": That file delivered by the Master Servicer
under Section 4.02(b) and made available by the Trustee under Section 4.02(a) as
set forth in Exhibit 1 to the Confirmation dated December 21, 1999.
"CMSA Loan Set Up File": That file delivered by the Master Servicer
under Section 4.02(b), and made available by the Trustee under Section 4.02(a),
as set forth in Exhibit 1 to the Confirmation dated December 21, 1999.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date after the
Second Sequel Closing Date, the period commencing immediately following the
Determination Date in the calendar month preceding the month in which such
Distribution Date occurs and ending on and including the Determination Date in
the calendar month in which such Distribution Date occurs; provided, however,
that with respect to Mortgage Loan No. 3018413 (Apple Apartments), the
Collection Period for any Distribution Date shall be the period commencing on
and including the eleventh day of the calendar month preceding the month in
which such Distribution Date occurs (or, in the case of the initial Distribution
Date, commencing immediately following the Original Cut-off Date) and ending on
and including the tenth day in the calendar month in which such Distribution
Date occurs.
"Commencement Date": September 1, 2000.
"Commission": The Securities and Exchange Commission.
"Component": Any of the Class MB Component, Class MC Component,
Class MD Component, Class MG Component, Class MH Component, Class MJ Component,
Class MK Component, Class UA-1A Component, Class UA-2A Component, Class UA-1B
Component, Class UA-2B Component, Class UA-3B Component, Class E Component,
Class F Component, Class L Component, Class M Component and Class N Component.
"Component Pass-Through Rate": Any of the MB Component Pass-Through
Rate, Class MC Component Pass-Through Rate, Class MD Component Pass-Through
Rate, Class MG Component Pass-Through Rate, Class MH Component Pass-Through
Rate, Class MJ Component Pass-Through Rate, Class MK Component Pass-Through
Rate, Class UA-1A Component Pass-Through Rate, Class UA-2A Component
Pass-Through Rate, Class UA-1B Component Pass-Through Rate, Class UA-2B
Component Pass-Through Rate, Class UA-3B Component Pass-Through Rate, Class E
Component Pass-Through Rate, Class F Component Pass-Through Rate, Class L
Component Pass-Through Rate, Class M Component Pass-Through Rate and Class N
Component Pass-Through Rate.
"Conduit Loans": Those Mortgage Loans originated by NationsBank,
N.A., a predecessor to the Mortgage Loan Seller, as identified on the Mortgage
Loan Schedule.
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Certificates being treated as a single Class for this
purpose) that has a then outstanding Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
lowest Payment Priority with at least two percent (2%) of the original Class
Principal Balance remaining.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Corporate Trust Office": The principal corporate trust office of
the Trustee, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at Wells Fargo Center, Sixth and
Marquette, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust
Services (CMBS) - Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-1 and for all other purposes, at the date
of the execution of this Agreement is located at 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Services (CMBS) - Banc
of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2000-1.
"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" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Corresponding Certificate," "Corresponding REMIC I Regular
Interest," "Corresponding REMIC II Uncertificated Regular Interest" and
"Corresponding REMIC IIIU Regular Interest": The related Classes of REMIC I
Regular Interests, REMIC II Uncertificated Regular Interests, REMIC IIIU Regular
Interests and the Certificates set forth below:
Corresponding REMIC Corresponding REMIC
Corresponding REMIC I II Uncertificated IIIU Regular Corresponding
Regular Interest Regular Interest Interest Certificate
---------------- ---------------- -------- -----------
Class LA-1 Class MA-1 (1) (2)
Uncertificated Uncertificated
Interest Interest
Class LA-2 Class MA-2 (1) (2)
Uncertificated Uncertificated
Interest Interest
Class LA-3 Class MA-3 (1) (2)
Uncertificated Uncertificated
Interest Interest
Class LA-4 Class MA-4 (1) (2)
Uncertificated Uncertificated
Interest Interest
Class LA-1C Class MA-1C (1) (2)
Uncertificated Uncertificated
Interest Interest
Class LA-2C Class MA-2C (1) (2)
Uncertificated Uncertificated
Interest Interest
Class LB Class MB Class B Certificate
Uncertificated Uncertificated
Interest Interest
Class LC Class MC Class C Certificate
Uncertificated Uncertificated
Interest Interest
Class LD Class MD Class D Certificate
Uncertificated Uncertificated
Interest Interest
Class LE Class E Certificate
Uncertificated
Interest
Class LF Class F Certificate
Uncertificated
Interest
Class LG Class MG Class G Certificate
Uncertificated Uncertificated
Interest Interest
Class LH Class MH Class H Certificate
Uncertificated Uncertificated
Interest Interest
Class LJ Class MJ Class H Certificate
Uncertificated Uncertificated
Interest Interest
Class LK Class MK Class K Certificate
Uncertificated Uncertificated
Interest Interest
Class LL Class L Certificate
Uncertificated
Interest
Class LM Class M Certificate
Uncertificated
Interest
Class LN Class N Certificate
Uncertificated
Interest
- ---------------------------------
(1) The Class UA-1A, Class UA-1B, Class UA-2A, Class UA-2B and Class UA-3B
Uncertificated Interests correspond collectively to the Class MA-1, Class
MA-2, Class MA-3, Class MA-4, Class MA-1C and Class MA-2C Uncertificated
Interests.
(2) The Class A-1A, Class A-1B, Class A-2A, Class A-2B and Class A-3B
Certificates correspond to the Class UA-1A, Class UA-1B, Class UA-2A, Class
UA-2B and Class UA-3B Uncertificated Interests.
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as the
case may be, in respect of the Mortgage Loans and any REO Loans for their
respective Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related Collection
Period, any payment of principal (exclusive of any Principal Prepayment and any
amount described in subclause (d) below) that was made by or on behalf of the
related Mortgagor during the related Collection Period, net of any portion of
such payment that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of any
Assumed Monthly Payment deemed due, in respect of such Balloon Mortgage Loan on
a Due Date during or prior to the related Collection Period and not previously
recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal thereof, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal portion of any
Assumed Monthly Payment deemed due, in respect of any such Mortgage Loan on a
Due Date during or prior to the related Collection Period and not previously
recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and applied
by the Master 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 Monthly Payment (other than a Balloon Payment) due, or
of the principal portion of any Assumed Monthly Payment deemed due, in respect
of any such REO Loan or the predecessor Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered.
"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, the Mortgage Loan Seller or an Affiliate of
either.
"Cut-off Date" : August 1, 2000.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Cash Flow (before payment of any debt service on such Mortgage Loan) generated
by the related Mortgaged Property during the most recently ended twelve month
period for which financial statements (whether or not audited) have been
received by or on behalf of the Mortgage Loan Seller (prior to the Original
Closing Date) or the Master Servicer or the Special Servicer (following the
Original Closing Date), to (y) the product of the amount of the Monthly Payment
in effect for such Mortgage Loan as of such date of determination, multiplied by
the number of months represented in the financial statements.
"Default Charges": Any and all Default Interest and late payment
charges paid or payable, as the context requires, in connection with a default
under a Mortgage Loan or any successor REO Loan.
"Default Interest": With respect to any Mortgage Loan (or related
REO Loan), any amounts collected thereon, other than late payment charges and
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Loan) at the related
Mortgage Rate, such excess interest arising out of a default under such Mortgage
Loan.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage Loan as
to which a material default has occurred or a default in respect of any payment
thereon is reasonably foreseeable, and which the Special Servicer has
determined, in its reasonable and good faith judgment, will become the subject
of a foreclosure sale or similar proceedings (the basis for which determination
shall be set forth in an Officer's Certificate to be delivered to the Master
Servicer and the Trustee).
"Defaulting Party": As defined in Section 7.01(b).
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting forth,
among other things, those Mortgage Loans which, as of the Determination Date for
the related Distribution Date] were (i) delinquent 30-59 days, (ii) delinquent
60-89 days, (iii) delinquent 90 days or more, (iv) current but specially
serviced, (v) in foreclosure but as to which the related Mortgaged Property had
not become REO Property, or (vi) for which the Borrower has filed for
bankruptcy.
"Delivery Date": On or about December 21, 1999.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(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 Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fifth (5th) Business Day before the Distribution Date.
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class will be the Directing Certificateholder.
"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 to
customers (other than the sale of an REO Property pursuant to Section 3.18(d)),
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 Special Servicer (or any Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly Operate an
REO Property solely because the Special Servicer (or any Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Disqualified Non-U.S. Person": With respect to a Class R-I, Class
R-II, Class R-III, Class R-IIIU or Class IV Certificate, any Non-U.S. Person or
agent thereof other than (i) a Non-U.S. Person that holds the Class R-I, Class
R-II, Class R-III, Class R-IIIU or Class R-IV Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 (or
successor form) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the Class R-I, Class R-II, Class
R-III, Class R-IIIU or Class R-IV Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R-I, Class R-II, Class R-III, Class R-IIIU or Class
R-IV Certificate will not be disregarded for federal income tax purposes.
"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 Freddie Mac, 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 REMIC Administrator based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual Certificate
by such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, pro rata, to
each Class of Certificates in accordance with the respective amounts of Accrued
Certificate Interest for each such Class of Certificates for such Distribution
Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "Wells Fargo Bank Minnesota, N.A.,
as Trustee, in trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-1,
Distribution Account".
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately following, commencing in
October, 2000.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"DTC": As defined in Section 5.03(d).
"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 Monthly 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 Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date, the period that
begins on and includes the 2nd day of the month preceding the month in which
such Distribution Date occurs and ends on and includes the 1st day of the month
in which such Distribution Date occurs.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa3" by
Moody's, and "AA-" by S&P (if the deposits are to be held in the account for
more than 30 days), or the short-term unsecured debt obligations of which are
rated no less than "P-1" by Moody's and "A-1" by S&P (if the deposits are to be
held in the account for 30 days or less), in each case, at any time funds are on
deposit therein, (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federally chartered depository institution or
trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity, (iii) a segregated trust account or accounts maintained with
the corporate trust department of a state chartered depository institution or
trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity and subject to regulations regarding fiduciary funds on
deposit therein substantially similar to 12 C.F.R. ss.9.10(b), or (iv) any other
account which would not result in the downgrade, qualification (if applicable)
or withdrawal of the rating then assigned by either Rating Agency to any Class
of Certificates (as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
request the Master Servicer to make, that must be made within 5 Business Days of
the Special Servicer's becoming aware that it must be made in order to avoid any
material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"Environmental Policy": The environmental policy issued by Steadfast
Insurance Company in the form attached hereto as Exhibit L and naming as
insureds the Trustee and the Mortgage Loan Seller.
"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 and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) NationsBank Corporation
(predecessor in interest to Bank of America Corporation), (ii) any Person
directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with Bank of America Corporation and (iii)
any member of a syndicate or selling group of which Bank of America Corporation
or a person described in clause (ii) is a manager or co-manager with respect to
a Class of Certificates.
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property and,
accordingly, the related REO Loan (other than a Mortgage Loan or REO Property,
as the case may be, purchased by the Mortgage Loan Seller or an Affiliate
thereof pursuant to Section 2.03, by the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or by the Master Servicer or the
Majority Certificateholder of the Controlling Class pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries (including, without limitation, by reason of a
sale of such Mortgage Loan or REO Property pursuant to Section 3.18(d) hereof)
that the Special Servicer has determined, in accordance with the Servicing
Standard, exercised without regard to any obligation of the Master Servicer or
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will be ultimately recoverable.
"First Sequel Closing Date": February 16, 2000.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppel
agreements entered into by and between lenders and ground lessees and/or ground
lessors and/or mortgagees of the ground leasehold estate.
"Group": A group of Mortgage Loans that are cross-collateralized and
cross-defaulted with each other.
"Group A Mortgage Loans": Those Mortgage Loans indicated as such on
the Mortgage Loan Schedule.
"Group B Mortgage Loans": Those Mortgage Loans indicated as such on
the Mortgage Loan Schedule.
"Group A Senior Certificate Principal Distribution Amount": With
respect to the Group A Mortgage Loan, and with respect to any Distribution Date,
the portion of the Principal Distribution Amount for the Group A Mortgage Loans
for such Distribution Date that represents scheduled payments, Balloon Payments,
Principal Prepayments, Liquidation Proceeds, and REO Revenues to the extent
allocable to principal.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Loan Modification Report": A report or reports 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 or reports, have been modified pursuant to this Agreement (i) during the
Collection Period ending on such Determination Date and (ii) since the Original
Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report or reports setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report or reports, (i) the amount
of Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, and
(ii) the amount of Realized Losses occurring during such Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator 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 Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator 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 Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any Affiliate thereof, as the case may be.
"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 (i)
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 not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), 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 (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class X Notional Amount thereof as of the Second
Sequel Closing Date equal to $771,179,585.
"Initial Class Principal Balance": As defined in the Preliminary
Statement.
"Initial Pool Balance": The aggregate Original Cut-off Date Balance
of all the Mortgage Loans included in the Trust Fund as of the Original Closing
Date.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, seismic (earthquake) insurance policy,
business interruption 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) or in respect of such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor, in either case,
in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to each Class of REMIC I
Regular Interests, REMIC II Uncertificated Regular Interests, REMIC III
Uncertificated Regular Interests and REMIC IIIU Regular Interests and each Class
of Regular Certificates, for any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Reserve Account": The segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 4.05 in trust
for the Certificateholders, which shall be entitled "Midland Loan Services,
Inc., as Master Servicer in trust for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-1, Interest Reserve Account".
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, any Holder of a
Certificate, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due, as the case may be, for a Due Date in a previous Collection
Period, or for a Due Date coinciding with or preceding the Original Cut-off
Date, and not previously received or 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 Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of the related Mortgage Loan or of an Assumed
Monthly Payment in respect of such REO Loan due or deemed due, as the case may
be, for a Due Date in a previous Collection Period and not previously received
or recovered. The term "Late Collections" shall specifically exclude any Default
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03; or (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b),
by the Master Servicer or the Special Servicer pursuant to Section 3.18(c), or
by the Master Servicer or the Majority Certificateholder of the Controlling
Class pursuant to Section 9.01. With respect to any REO Property (and the
related REO Loan), any of the following events: (x) a Final Recovery
Determination is made with respect to such REO Property; or (y) such REO
Property is purchased by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property repurchased (x) by the Mortgage Loan Seller or any Affiliate thereof
pursuant to Section 2.03, (y) by the Majority Certificateholder of the
Controlling Class, the Master Servicer or the Special Servicer pursuant to
Section 3.18 or (z) by the Master Servicer, the Special Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01), the fee
designated as such and payable to the Special Servicer pursuant to the fourth
paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts, including REO Revenues,
after deducting related expenses, all partial or unscheduled collections (other
than Insurance Proceeds) received by the Master Servicer or the Special Servicer
in connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting, or that constituted,
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 or any
guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class 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 the Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03;
or (vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"Lock-Out Period": As defined in the Prospectus Supplement.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Midland Loan Services, Inc., its successor in
interest or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments) and interest, Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), and (v) any amounts deposited in the Certificate Account in error;
provided that, with respect to the Master Servicer Remittance Date that occurs
in the same calendar month as the Final Distribution Date, the Master Servicer
Remittance Amount will be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicer Reporting Date": As defined in Section 4.02(b).
"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) and
from which the Standby Fee and any Primary Servicing Fees are payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan (and
any related REO Loan), a rate per annum that is 0.30 basis points (0.0030% per
annum) less than the Administrative Fee Rate specified for such Mortgage Loan in
the Mortgage Loan Schedule.
"Midland": Midland Loan Services, Inc., or its successor in
interest.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current Monthly
Payments with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage,
results 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 is), as determined by an
Appraisal 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
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any Due
Date as of which such Mortgage Loan is outstanding, the scheduled monthly
payment of principal and/or interest on such Mortgage Loan, including, without
limitation, a 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 a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20) and applicable law.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer, the Special Servicer and the REMIC Administrator, and specific ratings
of Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
Wells Fargo Bank Minnesota, N.A., as trustee for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, in favor of the Trustee (in such capacity);
(iv) the original or a copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
any such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the originator,
in favor of the Trustee (in such capacity), which assignment may be included as
part of the corresponding assignment of Mortgage referred to in clause (iii)
above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or provisions of the Mortgage,
Mortgage Note or any related security document have been modified or the
Mortgage Loan has been assumed;
(ix) a title insurance policy or a copy thereof effective as of the
date of the recordation of the Mortgage Loan, together with all endorsements or
riders that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the Mortgagor's fee
interest in the Mortgaged Property, or if the policy has not yet been issued, an
original or copy or a written commitment "marked-up" at the closing of such
Mortgage Loan, interim binder or the pro forma title insurance policy evidencing
a binding commitment to issue such policy, dated as of the date on which the
related Mortgage Loan was funded;
(x) the original of any guaranty of the obligations of the Mortgagor
under the Mortgage Loan which was in the possession of the Mortgage Loan Seller
at the time the Mortgage Files were delivered to the Trustee;
(xi) (A) file copies of any UCC Financing Statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Mortgage Loan Seller at the
time the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the related UCC-1, UCC-2 or UCC-3 financing
statements were in the possession of the Mortgage Loan Seller, an original UCC-2
or UCC-3 financing statement, as applicable, executed by the most recent
assignee of record prior to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest to the Trustee (or a certified
copy of such assignment as sent for filing);
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was signed on
behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy thereof;
(xiv) the original or copy of any intercreditor agreement relating
to such Mortgage Loan;
(xv) the original or copy of any operating lease relating to the
related Mortgaged Property;
(xvi) the original or a copy of the related loan agreement;
(xvii) the original or a copy of any management agreement relating
to such Mortgage Loan;
(xviii) the original or a copy of any lock-box agreement relating to
such Mortgage Loan;
(xix) the original or a copy of any environmental report and/or
engineering report relating to such Mortgage Loan; provided that, if such report
is sent directly to the Master Servicer, the Depositor shall have no duty to
provide a copy of such report to the Trustee;
(xx) any additional documents required to be added to the Mortgage
File pursuant to this Agreement; and
(xxi) any environmental policy;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement, dated as of December 21, 1999, among Bank of
America, N.A., the NB Owner Trust and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Original Closing Date to the Trustee as part of the Trust Fund, which list
is attached hereto as Schedule I and may be amended from time to time in
accordance with Section 2.02(e). The Mortgage Loan Schedule shall set forth,
among other things, the following information with respect to each Mortgage
Loan:
(i) the loan number, the control number, whether the Mortgage Loan
is a Conduit Loan or a Portfolio Loan and whether the Mortgage Loan is in Group
A or Group B;
(ii) [Reserved]
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date and (b)
whether the Mortgage Loan accrues interest on the basis of the actual number of
days elapsed in the relevant month of accrual and a 360-day year (an "Actual/360
Basis") or on the basis of a 360-day year consisting of twelve 30-day months (a
"30/360 Basis") or on the basis of the actual number of days elapsed in the
relevant month of accrual and a 360-day year, except that during any year,
February will accrue interest based upon 28 days in such month (an "Actual
365/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Primary Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related Mortgaged
Property is a leasehold estate;
(xiii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan;
(xiv) the property type (e.g., multifamily);
(xv) the property size (the square feet or units);
(xvi) the original amortization term; and,
(xvii) the discount rate used in accordance with the related
Mortgage Loan documents in calculating the Prepayment Premium with respect to a
Principal Prepayment.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": Bank of America, N.A., and its successors
and assigns.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"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 annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the terms of the related Mortgage Note (as such may be
modified at any time following the Original Closing Date) and applicable law,
(ii) any Mortgage Loan after its Stated Maturity Date, the annualized rate
described in clause (i) above determined without regard to the passage of such
Stated Maturity Date, and (iii) any REO Loan, the annualized rate described in
clause (i) or (ii) above, as applicable, determined as if the related Mortgage
Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"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.
"Movie Theater Mortgage Loan": As defined in Section 4.01(c)(iv).
"NB Conduit Originator": Each of ARCS Commercial Mortgage Co., L.P.,
a California limited partnership, Berkshire Mortgage Finance Corporation, First
Security Bank, N.A., L.J. Melody & Company, Patrician Financial Company Limited
Partnership and Prudential MultiFamily Mortgage, Inc. (successor in interest to
WMF Washington Mortgage Corp).
"NB Owner Trust": NationsBank Commercial Mortgage Owner Trust I,
formerly a Delaware business trust (Certificate of Cancellation filed on
December 30, 1999).
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the non-Specially Serviced Mortgage Loans during the
related Collection Period, exceeds (b) the aggregate amount remitted by the
Master Servicer for deposit in the Distribution Account for such Distribution
Date pursuant to Section 3.19(e) in connection with such Prepayment Interest
Shortfalls.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, any Default Charges actually collected thereon (determined in accordance
with the allocation of amounts collected as specified in Section 1.02), net of
any Advance Interest accrued on Advances made in respect of such Mortgage Loan,
but only to the extent such Advance Interest is reimbursable from such Default
Charges in accordance with Section 3.05(a)(viii).
"Net Investment Earnings": With respect to any Investment Account
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 Investment Account, exceeds the aggregate of all losses and investment
costs, 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 any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment 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 REO Loan,
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the related Administrative Fee Rate. For purposes of
calculating the Pass-Through Rate for each Class of REMIC Regular Certificates
from time to time, the Net Mortgage Rate for any Mortgage Loan will be
calculated without regard to any modification, waiver or amendment of the terms
of such Mortgage Loan subsequent to the Original Closing Date.
"New Certificates": As defined in the Preliminary Statement.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed to be
made in respect of a Mortgage Loan or REO Loan which, as determined by the
Master Servicer or, if applicable, the Trustee, in its reasonable and good faith
judgment, will not be recoverable (together with Advance Interest accrued
thereon), or which in fact was not ultimately recovered, from late collections,
Default Charges (but only to the extent such Default Charges would be available
to pay Advance Interest under Section 3.05(a)(viii), Insurance Proceeds,
Liquidation Proceeds or any other recovery on or in respect of such Mortgage
Loan or REO Property (without giving effect to potential recoveries on
deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Mortgage Loan or REO Property which, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee, in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or which in fact was not
ultimately recovered, from late collections, Default Charges (but only to the
extent such Default Charges would be available to pay Advance Interest under
Section 3.05(a)(viii)), Insurance Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Mortgage Loan or REO Property (without giving
effect to potential recoveries on deficiency judgments or recoveries from
guarantors).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class G, Class H, Class K, Class L, Class M and Class N
Certificate.
"Non-U.S. Person": Any person other than a U.S. Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, a Responsible Officer of the
Trustee or any authorized officer of the Mortgage Loan Seller, as the case may
be.
"Operating Statement Analysis Report": As defined in Section
4.02(b).
"Operating Statement Analysis Worksheet": A report prepared by the
Master Servicer or the Special Servicer, as the case may be, substantially
containing the content described in Exhibit K attached hereto, presenting the
computations made in accordance with the methodology described in said Exhibit M
to "normalize" the full year of annual Net Cash Flow and debt service coverage
numbers used in the other reports required by this Agreement, sent to the
Trustee (or, with respect to the Special Servicer, the Master Servicer, which
will consist of the related data elements) with a hard copy of each annual
operating statement for a Mortgaged Property pursuant to Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Mortgage Loan Seller, the
Trustee, the REMIC Administrator, the Master Servicer or the Special Servicer),
which written opinion is acceptable and delivered to the addressee(s).
"Original Certificates": As defined in the Preliminary Statement.
"Original Class Notional Amount": With respect to the Class X
Certificates, the initial Class X Notional Amount thereof as of the Original
Closing Date equal to $780,947,924.
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the original Class Principal Balance thereof as of
the Original Closing Date, in each case as set forth below:
Original Class
Class Principal Balance
----- -----------------
Class A-1(1) $ 40,743,740
Class A-2(1) $ 29,354,604
Class A-3(1) $ 51,733,026
Class A-4(1) $ 34,553,195
Class A-1C(1) $ 86,672,805
Class A-2C(1) $332,891,723
Class B $ 40,999,765
Class C $ 35,142,657
Class D $ 11,714,219
Class E $ 27,333,177
Class F $ 11,714,219
Class G $ 11,714,219
Class H $ 13,666,589
Class J(2) $ 5,857,109
Class K $ 3,904,740
Class L $ 15,618,958
Class M $ 7,809,479
Class N $ 19,523,699
- ---------------------------------
(1) Redesignated without regard to the sequence listed above as Class A-1A,
Class A-2A, Class A-1B, Class A-2B and Class A-3B.
(2) Combined into "Class H" on the First Sequel Closing Date.
"Original Closing Date": December 21, 1999.
"Original Cut-off Date": December 1, 1999.
"Original Cut-off Date Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Original
Cut-off Date, net of all unpaid payments of principal due in respect thereof on
or before such date.
"Original Pooling Agreement": As defined in the Preliminary
Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Over 49% Interest": As defined in Section 3.26(h).
"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 any Class of Sequential Pay
Certificates the rate per annum specified as such in respect of such Class of
Certificates in the Preliminary Statement hereto. With respect to the Class X
Certificates, for any Distribution Date, the Class X Pass-Through Rate. With
respect to the Class MX Uncertificated Interest, for any Distribution Date, the
Class MX Pass-Through Rate. With respect to the Class UX Uncertificated
Interest, for any Distribution Date, the Class UX Pass-Through Rate.
"Payment Priority": With respect to any Class of Certificates, the
priority of the Holders thereof in respect of the Holders of the other Classes
of Certificates to receive distributions out of the Available Distribution
Amount for any Distribution Date. The Payment Priority of the respective Classes
of Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates; second, the Class B Certificates; third, the
Class C Certificates; fourth, the Class D Certificates; fifth, the Class E
Certificates; sixth, the Class F Certificates; seventh, the Class G
Certificates; eighth, the Class H Certificates; ninth, the Class K Certificates;
tenth, the Class L Certificates; eleventh, the Class M Certificates; twelfth,
the Class N Certificates, and last, the respective Classes of Residual
Certificates.
"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
Original Closing Date (in the case of the Class E, Class F, Class L, Class M and
Class N Certificates) or the First Sequel Closing Date (in the case of the Class
G, Class H and Class K Certificates), or the Second Sequel Closing Date (in the
case of the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B, Class B,
Class C, Class D and Class X Certificates), as specified on the face thereof,
and the denominator of which is the Initial Class Principal Balance or Initial
Class 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.
"Permitted Encumbrances": As defined in Section 2.05(b)(v).
"Permitted Investments": Any one or more of the following
obligations:
(a) 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, provided such obligations are backed by the full faith
and credit of the United States;
(b) repurchase obligations with respect to any security described in
clause (i) above, provided that the long-term unsecured debt obligations of the
party agreeing to repurchase such obligations are rated "Aaa" by Moody's and
"AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more than
365 days) of any bank or trust company organized under the laws of the United
States or any state, provided that the short-term unsecured debt obligations of
such bank or trust company are rated no less than "P-1" by Moody's, and "A-1+"
by S&P;
(d) 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 rated no less than "P-1" by Moody's, and "A-1+" by S&P;
(e) units of money markets funds that maintain a constant asset
value and which are rated in the highest applicable rating category by each of
S&P (i.e. "AAAm" or "AAAmG") and Moody's; and
(f) any other obligation or security which would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates, evidence of
which shall be confirmed in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that 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; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment may
have a rating from S&P with an "r" highlighter.
"Permitted Transferee ": Any Transferee of a Residual Certificate
other than either a Disqualified Organization or a Disqualified Non-U.S. Person
or any nominee, agent or middleman of either.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of,
(i) Chapter 5 of the FNMA Multifamily Guide or any successor provisions covering
the same subject matter, in the case of Specially Serviced Mortgage Loans as to
which the related Mortgaged Property is multifamily property or (ii) the
American Society for Testing and Materials in the case of Specially Serviced
Mortgage Loans as to which the related Mortgaged Property is a non-multifamily
property.
"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.
"Plan": As defined in Section 5.02(c).
"Portfolio Loans": Those Mortgage Loans originated by Bank of
America NT&SA, a predecessor of the Mortgage Loan Seller, as indicated as such
on the Mortgage Loan Schedule.
"Prepayment Assumption": The assumption used for determining the
accrual of original issue discount, market discount and premium, if any, on the
REMIC IIIU Regular Interests and the New Certificates for federal income tax
purposes, which will be 0% of the Mortgage Loans through Lock-Out and Yield
Maintenance Periods and prepayments at 100% CPR thereafter, and except that in
the case of the Group B Mortgage Loans, 6% CPR is assumed after the expiration
of the applicable Lock-Out Periods, if any, through Yield Maintenance Periods,
and 100% CPR thereafter. In the case of the Mortgage Loans, the REMIC I Regular
Interests, the REMIC II Uncertificated Regular Interests, the REMIC III
Uncertificated Regular Interest and the Unaffected Certificates, the assumption
used for determining the accrual of original issue discount, market discount and
premium if any, for federal income tax purposes will be 0% CPR for the Conduit
Mortgage Loans and 6% CPR in the case of the Portfolio Mortgage Loans.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after the first day of such month,
any payment of interest (net of related Master Servicing Fees and exclusive of
Prepayment Premiums) actually collected from the related Mortgagor and intended
to cover the period from the commencement of such month to the date of
prepayment.
"Prepayment Interest Shortfall": With respect to any non-Specially
Serviced Mortgage Loan that was subject to a Principal Prepayment in full or in
part made after the Determination Date in any calendar month, the amount of
uncollected interest that would have accrued at a per annum rate equal to the
sum of the Net Mortgage Rate for such non-Specially Serviced Mortgage Loan plus
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 non-Specially Serviced Mortgage Loan and ending on the last day of such
calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan or any
successor REO Loan.
"Prepayment Premium Amount": As defined in Section 4.01(c).
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Original Closing Date, the
monthly fee payable to the Sub-Servicer by the Master Servicer from the Master
Servicing Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Original Closing Date,
the rate per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Missouri and, with respect to the Special
Servicer, the office thereof primarily responsible for performing its respective
duties under this Agreement, initially located in California.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the Current Principal Distribution Amount for such
Distribution Date and, if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the preceding Distribution Date, over the aggregate distributions of principal
made on the Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest (without regard to
any Prepayment Premium that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Prospectus Supplement": That certain prospectus supplement dated
September 14, 2000, relating to the Class A, Class B, Class C, Class D, Class E,
Class F and Class X Certificates, that is a supplement to the Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan, a price equal
to the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on the Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase, (b) all related unreimbursed Servicing Advances, (c) all accrued
and unpaid Advance Interest in respect of related Advances and (d) any related
unreimbursed Additional Trust Fund Expenses. With respect to any REO Property, a
price equal to the unpaid principal balance of the related REO Loan as of the
date of purchase, together with (a) all 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 purchase, (b) all related unreimbursed Servicing Advances,
(c) all accrued and unpaid Advance Interest in respect of related Advances, and
(d) any related unreimbursed Additional Trust Fund Expenses. The Purchase Price
of any Mortgage Loan or REO Property is intended to include, without limitation,
principal and interest previously advanced with respect thereto and not
previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of Moody's and S&P.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in November 15, 2031.
"Realized Loss": With respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any 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 (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the Due
Date in the Due Period related to the Collection Period in which the Final
Recovery Determination was made, plus (ii) all accrued but unpaid interest on
such Mortgage Loan or REO Loan, as the case may be, at the related Mortgage Rate
to but not including the Due Date in the Due Period related to the Collection
Period in which the Final Recovery Determination was made, plus (iii) 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 (iv) all
payments and proceeds, if any, received in respect of such Due Period related to
the Mortgage Loan or REO Loan, as the case may be, during the Collection Period
in which such Final Recovery Determination was made (net of any related
Liquidation Expenses paid therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven 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 Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest (other than any Default Interest)
so forgiven.
With respect to any 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 Master Servicer or Special Servicer pursuant to Section
3.20, the amount of the consequent reduction, if any, in the interest portion of
each successive Monthly Payment due thereon. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Regular Certificates": Any of the Class A-1A, Class A-2A, Class
A-1B, Class A-2B, Class A-3B, Class X, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class K, Class L, Class M and Class N Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
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 such "prime rate", then the Trustee, in its sole discretion, 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 Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Wells Fargo Bank Minnesota, N.A., its
successor in interest, or any successor REMIC administrator appointed as herein
provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
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 or
receivable after the Original Cut-off Date (other than payments of principal,
interest and other amounts due and payable on the Mortgage Loans on or before
the Original Cut-off Date), together with all documents, Escrow Payments and
Reserve Funds delivered or caused to be delivered hereunder with respect to such
Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in
respect of a Mortgage Loan and all payments and proceeds of such REO Property;
and (iii) such amounts on or with respect to clauses (i) or (ii) as from time to
time are deposited in the Distribution Account, the Certificate Account, the
Interest Reserve Account and the REO Account (if established).
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate sub-account or sub-accounts of the
Distribution Account by the Trustee pursuant to Section 3.04, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, REMIC I Distribution Account" and which account
shall be an Eligible Account.
"REMIC I Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC I Regular Interests": Any of the Class LA-1, Class LA-2,
Class LA-3, Class LA-4, Class LA-1C, Class LA-2C, Class LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM
and Class LN Uncertificated Interests.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, the Weighted Average Adjusted Net Mortgage Rate.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate sub-account or sub-accounts of the
Distribution Account by the Trustee pursuant to Section 3.04, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, REMIC II Distribution Account" and which account
shall be an Eligible Account.
"REMIC II Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC II Regular Interests": On and after the Second Sequel Closing
Date, the REMIC II Uncertificated Regular Interests and the Unaffected REMIC II
Certificates.
"REMIC II Remittance Rate": With respect to any REMIC II
Uncertificated Regular Interest (other than the Class MX Uncertificated
Interest), the Weighted Average Adjusted Net Mortgage Rate. With respect to the
Class MX Uncertificated Interest, the Class MX Pass-Through Rate.
"REMIC II Uncertificated Regular Interests": Any of the Class MA-1,
Class MA-2, Class MA-3, Class MA-4, Class MA-1C, Class MA-2C, Class MB, Class
MC, Class MD, Class MG, Class MH, Class MJ, Class MK and Class MX Uncertificated
Interests.
"REMIC III": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of the Class MG, Class MH, Class MJ,
Class MK and Class MX Uncertificated Interests, and amounts distributed thereon
as from time to time are held in the REMIC III Distribution Account.
"REMIC III Certificate": Each of the Class G, Class H and Class K
and Class R-III Certificates.
"REMIC III Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC III Regular Certificate": Any REMIC III Certificate, other
than a Class R-III Certificate.
"REMIC III Distribution Account": The segregated account or accounts
created and maintained as a separate sub-account or sub-accounts of the
Distribution Account by the Trustee pursuant to Section 3.04, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, REMIC III Distribution Account" and which account
shall be an Eligible Account.
"REMIC III Regular Interests": On and after the First Sequel Closing
Date, the REMIC III Uncertificated Regular Interest and the Unaffected REMIC III
Certificates.
"REMIC III Uncertificated Regular Interest": The Class UX
Uncertificated Interest.
"REMIC IIIU": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class MA-1, Class MA-2, Class MA-3,
Class MA-4, Class MA-1C and Class MA-2C Uncertificated Interests and amounts
distributed thereon as from time to time are held in the REMIC IIIU Distribution
Account.
"REMIC IIIU Distribution Account": The segregated account or
accounts created and maintained as a separate trust sub-account or sub-accounts
of the Distribution Account by the Trustee pursuant to Section 3.04, which shall
be entitled "Wells Fargo Bank Minnesota, as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, REMIC IIIU Distribution Account," and which account
shall be an Eligible Account.
"REMIC IIIU Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC IIIU Regular Interests": Any of the Class UA-1A, Class UA-2A,
Class UA-1B, Class UA-2B, and Class UA-3B Uncertificated Interests.
"REMIC IIIU Remittance Rate": With respect to any REMIC IIIU Regular
Interest, the Weighted Average Adjusted Net Mortgage Rate.
"REMIC IV": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class UA-1A, Class UA-2A, Class
UA-1B, Class UA-2B, Class UA-3B, Class MB, Class MC, Class MD and Class UX
Uncertificated Interests and amounts distributed thereon as from time to time
are held in the REMIC IV Distribution Account.
"REMIC IV Certificate": Any of the Class A-1A, Class A-2A, Class
A-1B, Class A-2B, Class A-3B, Class B, Class C, Class D, Class X and Class R-IV
Certificates.
"REMIC IV Distribution Account": The segregated account or accounts
created and maintained as a separate trust sub-account or accounts of the
Distribution Account by the Trustee pursuant to Section 3.04, which shall be
entitled "Wells Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-1, REMIC IV Distribution Account," and which account
shall be an Eligible Account.
"REMIC IV Regular Certificates": Any of the REMIC IV Certificates
other than the Class R-IV Certificates.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such REO
Property, if the determination of such amount depends in whole or in part on the
income or profits derived by any Person from such property (unless such amount
is a fixed percentage or percentages of receipts or sales and otherwise
constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by attribution)
a ten percent or greater interest in such Person determined in accordance with
Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in buildings of a
similar Class in the same geographic market as such REO Property within the
meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such
charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO Property
and, for any taxable year of the Trust Fund, such rent is no greater than 15
percent of the total rent received or accrued under, or in connection with, the
lease.
"REO Account": A segregated custodial 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 "GMAC
Commercial Mortgage Corporation, as Special Servicer, in trust for registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-1, REO Account".
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Mortgage Loan. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. 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 the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly 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. All amounts payable or
reimbursable to the Master Servicer, the Special Servicer and/or the Trustee in
respect of the related Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Servicing Fees and any
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer, Special Servicer and/or the Trustee in respect of such
Advances, shall continue to be payable or reimbursable to the Master Servicer,
Special Servicer and/or Trustee as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
pursuant to Section 3.09 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 or reports substantially in the form
of Exhibit E attached hereto setting forth, among other things, 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 or reports, (i) the Acquisition Date of such REO Property, (ii) the
amount of income collected with respect to any REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
related Collection Period and (iii) the value of the REO Property based on the
most recent Appraisal or other valuation thereof available to the Master
Servicer as of such Determination Date (including any valuation prepared
internally by the Special Servicer).
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit M attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least two of the following parties (one
of which, except with respect to a fidelity bond or errors and omission
insurance maintained by a Sub-Servicer but only to the extent in force as of the
Original Closing Date, must be an S&P rating) and, in any event, by each Rating
Agency that assigned a rating to the claims-paying ability of such insurance
carrier: Moody's ("A2" or better), Fitch, Inc. ("A" or better), S&P ("A" or
better) and A.M. Best ("A: IX" or better); provided, however, that a rating by
A.M. Best shall be disregarded and shall not be applicable as one of the two
required ratings except with respect to a fidelity bond or errors and omissions
insurance maintained by a Sub-Servicer and then only to the extent in force as
of the Original Closing Date. Notwithstanding the preceding sentence, an
insurance carrier with lower or fewer claims-paying ability ratings shall be
deemed to have the "Required Claims-Paying Ratings" if each of the Rating
Agencies has confirmed in writing that such insurance carrier shall not result,
in and of itself, in a downgrading, withdrawal or qualification (if applicable)
of the then current rating assigned by such Rating Agency to any Class of
Certificates.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"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 principal and interest payments, repairs,
replacements, capital improvements (including, without limitation, tenant
improvements and leasing commissions), and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II, Class R-III,
Class R-IIIU or Class R-IV Certificate.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Services Group, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other 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. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" 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, the Special Servicer and the REMIC
Administrator, and specific ratings of Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Second Sequel Closing Date": September 27, 2000.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1A, Class A-2A, Class A-1B, Class
A-2B, Class A-3B or Class X Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A Certificates outstanding immediately prior to such Distribution Date exceeds
the sum of (a) the aggregate Stated Principal Balance of the Mortgage Pool that
will be outstanding immediately following such Distribution Date, plus (b) the
lesser of (i) the Principal Distribution Amount for such Distribution Date and
(ii) the portion of the Available Distribution Amount for such Distribution Date
that will remain after the distributions of interest to be made on the Senior
Certificates on such Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class K, Class L, Class M or Class N
Certificate.
"Servicer Reports": As defined in Section 4.02 (a) and Section
4.02(b).
"Servicer Watch List": As defined in Section 4.02(b).
"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 or to be incurred, as the context
requires, by the Master Servicer or the Special Servicer (or, if applicable, the
Trustee) in connection with the servicing of a Mortgage Loan after a default,
delinquency or other unanticipated event, 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/or the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan or REO Property, (d) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including, without limitation, foreclosures,
and (e) the operation, management, maintenance and liquidation of any REO
Property; provided that notwithstanding anything herein 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 incurred by either such party in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Special
Servicer hereunder shall be considered "Servicing Advances" for the purposes
hereof.
"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), including, without limitation, the related
environmental site assessment report(s) referred to in Section 2.05(b)(xiv), in
the possession of the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Original Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer, to service and administer the Mortgage Loans and any
REO Properties for which such Person is responsible hereunder: (a) in accordance
with the higher standard of (i) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, generally services and administers comparable
mortgage loans or assets, as applicable, for other third parties, and (ii) 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 comparable mortgage loans or assets, as
applicable, owned by it; (b) with a view to the timely collection of all Monthly
Payments of principal and interest under the Mortgage Loans or, if a Mortgage
Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
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); 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 any related Mortgagor; (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 Master Servicer's obligation to make
Advances; (iv) the Special Servicer's obligation to make Emergency Advances or
make (or to direct the Master Servicer to make) Servicing Advances; and (v) the
right of the Master Servicer (or any Affiliate thereof) or the Special Servicer
(or any Affiliate thereof), as the case may be, to receive compensation for its
services or reimbursement of costs hereunder or with respect to any particular
transaction.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of Regular Certificates evidencing a $1,000 denomination or, in the
case of a Class X Certificate, a 100% Percentage Interest.
"Single-Purpose Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other
Mortgage Loans and assets incidental to the ownership and operation of such
Mortgaged Property or Properties, and which has agreed, either in such
organizational documents or the loan documents relating to any related Mortgage
Loan, that it (a) does not engage in any business unrelated to such property and
the financing thereof; (b) does not have any indebtedness other than as
permitted by the related Mortgage, (c) maintains its own books, records and
accounts, in each case which are separate and apart from the books, records and
accounts of any other Person; (d) conducts business in its own name; (e) does
not guarantee or assume the debts or obligations of any other person; (f) does
not commingle its assets or funds with those of any other Person; (g) transacts
business with affiliates on an arm's length basis; and (h) holds itself out as
being a legal entity separate and apart from any other Person. In addition, such
entity's organizational documents provide that any dissolution and winding up or
insolvency filing for such entity requires either the unanimous consent of all
partners or members, as applicable, or the consent of an independent Person
(whether as a partner, member, or director in such entity or in any Person that
is the managing member or general partner of such entity or otherwise), and
either such organizational documents or the terms of the mortgage loan documents
provide that such organizational documents may not be amended without the
consent of the lender as regards such single-purpose entity requirements.
"Special Servicer": GMAC Commercial Mortgage Corporation, its
successor in interest, or any successor special servicer appointed as herein
provided.
"Special Servicer Loan Status Report": A report or reports (which
need not be in a separate report or reports from the reports listed in clauses
(1), (2), (3), (4) and (6) of Section 4.02(b)) setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report or reports, (i) the aggregate unpaid
principal balance of all Specially Serviced Mortgage Loans and (ii) a
loan-by-loan listing of all Specially Serviced Mortgage Loans indicating their
status, date and reason for transfer to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 25 basis points (0.25%) per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued, or the Master Servicer determines, in its
good faith and reasonable judgment, will continue, unremedied for 30 days and
the Mortgagor has not delivered to the Master Servicer a written refinancing
commitment from an acceptable lender and reasonably satisfactory in form and
substance to the Master Servicer which provides such refinancing will occur
within 60 days after the date of such Balloon Payment (provided that if such
refinancing does not occur during such time, the related Mortgage Loan will
immediately become a Specially Serviced Mortgage Loan); or
(b) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment required under the
related Mortgage Note or the related Mortgage, which failure has continued, or
the Master Servicer determines, in its good faith and reasonable judgment, will
continue, unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith and
reasonable judgment, that a default in the making of a Monthly Payment
(including, without limitation, a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage 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, for at least 30 days and the Mortgagor has not
delivered to the Master Servicer a written refinancing commitment from an
acceptable lender and reasonably satisfactory in form and substance to the
Master Servicer which provides such refinancing will occur within 60 days after
the date of such Balloon Payment (provided that if such refinancing does not
occur during such time, the related Mortgage Loan will immediately become a
Specially Serviced Mortgage Loan); or
(d) there shall have occurred a default under the related loan
documents, other than as described in clause (a) or (b) above, that may, in the
Master Servicer's or the Special Servicer's good faith and reasonable judgment,
materially impair the value of the related Mortgaged Property as security for
the Mortgage Loan or otherwise materially and adversely affect the interests of
Certificateholders, which default has continued unremedied for the applicable
cure period under the terms of the Mortgage Loan (or, if no cure period is
specified, 60 days); or
(e) 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, marshalling 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
(f) the related Mortgagor shall have consented to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling 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
(g) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(h) the Master Servicer or the Special Servicer shall have received
notice of the commencement of foreclosure or similar proceedings with respect to
the related Mortgaged Property.
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or at such time
as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a) and
(b) above, the related Mortgagor has made three consecutive full and timely
Monthly 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 (c), (e),
(f), and (g) above, such circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above,
such default is cured; and
(z) with respect to the circumstances described in clause (h) above,
such proceedings are terminated.
"Standby Fee": With respect to each Mortgage Loan and each REO Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Standby Fee Rate": With respect to each Mortgage Loan and each REO
Loan, .075 basis points (0.00075%) per annum.
"Startup Day": With respect to each of REMIC I, REMIC II, REMIC III,
REMIC IIIU and REMIC IV, the day designated as such for each such REMIC in
Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date on which the last payment of principal is due and payable under the terms
of the related Mortgage Note as in effect on the Original 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 Master Servicer or Special Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), a principal amount initially equal to the Original
Cut-off Date Balance of such Mortgage Loan, that is permanently reduced on each
Distribution Date (to not less than zero) by (i) all payments (or P&I Advances
in lieu thereof) of, and all other collections allocated as provided in Section
1.02 to, principal of or with respect to such Mortgage Loan (or successor REO
Loan) that are (or, if they had not been applied to cover any Additional Trust
Fund Expense, 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 REO Loan) during the related
Collection Period. Notwithstanding the foregoing, if a Liquidation Event occurs
in respect of any Mortgage Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class K, Class L, Class M, Class N or a Residual
Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"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.
"Successor Servicer Retained Fee": As defined in Section 3.11(a).
"Tax Matters Person": With respect to each of REMIC I, REMIC II,
REMIC III, REMIC IIIU and REMIC IV, the Person designated as the "tax matters
person" of such REMIC in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The "Tax Matters
Person" for each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV is the
Holder of Certificates evidencing the largest Percentage Interest in the related
Class of Residual Certificates.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and
REMIC IV due to its classification as a REMIC under the REMIC Provisions,
together with any and all other information, reports or returns that may be
required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal or Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferable Portion": As defined in Section 3.11(a).
"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": The common law trust created pursuant to the Original
Pooling Agreement (as amended and restated hereby) .
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
REMIC III, REMIC IIIU and REMIC IV.
"Trust REMICs": REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC
IV.
"Trustee": Wells Fargo Bank Minnesota, N.A. (successor in interest
to Norwest Bank Minnesota, National Association), in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Mortgage Loan and
REO Loan, calculated on the Stated Principal Balance as of the Due Date in the
immediately preceding Collection Period and for the same number of days (i.e.,
on the basis of, as applicable, a 360-day year consisting of twelve 30-day
months or the actual number of days elapsed during each calendar month in a
360-day year) respecting which any related interest payment due on such Mortgage
Loan or deemed to be due on such REO Loan is computed under the terms of the
related Mortgage Note (as such terms may be changed or modified at any time
following the Original Closing Date) and applicable law.
"Trustee Fee Rate": A rate of .003% per annum.
"Trustee's Website": The website maintained by the Trustee and
initially located at "www.ctslink.com/cmbs".
"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 the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Unaffected Certificates": As defined in the Preliminary Statement.
"Unaffected REMIC II Certificates": As defined in the Preliminary
Statement.
"Unaffected REMIC III Certificates": As defined in the Preliminary
Statement.
"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. With
respect to any REMIC II Uncertificated Regular Interest, for any Distribution
Date, one month's interest at the REMIC II Remittance Rate applicable to such
REMIC II Uncertificated Regular Interest for such Distribution Date, accrued on
the Uncertificated Principal Balance or the Class MX Notional Amount, as
applicable, of such REMIC II Uncertificated Regular Interest outstanding
immediately prior to such Distribution Date. With respect to the REMIC III
Uncertificated Regular Interest for any Distribution Date, one month's accrued
interest at the Class UX Pass-Through Rate for such Distribution Date on the
Class UX Notional Amount of such REMIC III Uncertificated Regular Interest
outstanding immediately prior to such Distribution Date. With respect to any
REMIC IIIU Regular Interest, for any Distribution Date, one month's interest at
the REMIC IIIU Remittance Rate applicable to such REMIC IIIU Regular Interest
for such Distribution Date, accrued on the Uncertificated Principal Balance of
such REMIC IIIU Regular Interest outstanding immediately prior to such
Distribution Date. The Uncertificated Accrued Interest in respect of any REMIC I
Regular Interest, REMIC II Uncertificated Regular Interest, REMIC III Regular
Interest or REMIC IIIU Regular Interest for any Distribution Date shall be
deemed to have accrued during the applicable Interest Accrual Period.
"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) the Net Aggregate Prepayment
Interest Shortfall, if any, 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 Uncertificated Regular Interest, for any Distribution Date, the
Uncertificated Accrued Interest in respect of such REMIC II Uncertificated
Regular Interest for such Distribution Date, reduced (to not less than zero) by
the product of (i) the excess of (a) the Net Aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date, over (b) the portion of such Net
Aggregate Prepayment Interest Shortfall allocated to the Class E, Class F, Class
L, Class M and Class N Certificates pursuant to the definition of "Distributable
Certificate Interest," multiplied by (ii) a fraction, the numerator of which is
the Uncertificated Accrued Interest in respect of such REMIC II Uncertificated
Regular Interest for such Distribution Date, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC II
Uncertificated Regular Interests for such Distribution Date. With respect to the
REMIC III Uncertificated Regular Interest for any Distribution Date, the
Uncertificated Accrued Interest in respect of such REMIC III Uncertificated
Regular Interest, reduced (to not less than zero) by the excess of (a) the Net
Aggregate Prepayment Interest Shortfall, if any, for such Distribution Date over
(b) the sum of the portions of such Net Aggregate Prepayment Interest Shortfall
allocated to the Class MA-1, Class MA-2, Class MA-3, Class MA-4, Class MA-1C,
Class MA-2C, Class MB, Class MC, and Class MD Uncertificated Interests pursuant
to the preceding sentence and to the Class E, Class F, Class G, Class H, Class
K, Class L, Class M and Class N Certificates pursuant to the definition of
"Distributable Certificate Interest". With respect to any REMIC IIIU Regular
Interest, the Uncertificated Accrued Interest in respect of such REMIC IIIU
Regular Interest for such Distribution Date, reduced (to not less than zero) by
the product of (i) the excess of (a) the Net Aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date over (b) the sum of the portions
of such Net Aggregate Prepayment Interest Shortfall allocated to the Class MB,
Class MC and Class MD Uncertificated Interests pursuant to the second preceding
sentence, to the REMIC III Uncertificated Regular Interest pursuant to the
preceding sentence and to the Class E, Class F, Class G, Class H, Class K, Class
L, Class M and Class N Certificates pursuant to the definition of "Distributable
Certificate Interest," and (ii) a fraction, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC IIIU Regular Interest
for such distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC IIIU Regular
Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to any Class of
REMIC I Regular Interests, (i) on or prior to the first Distribution Date, an
amount equal to the Original Class Principal Balance of the Corresponding Class
of Certificates (in the case of the Class LH Uncertificated Interest and the
Class LJ Uncertificated Interest, the Original Class Principal Balance of the
Class H and the Class J Certificates as noted in footnote (1) on Page 3 of this
Agreement), and (ii) as of any date of determination after the first
Distribution Date, an amount equal to the Class Principal Balance or
Uncertificated Principal Balance, as applicable, of the Class of REMIC II
Regular Interests corresponding thereto on the Distribution Date immediately
prior to such date of determination, in each case after giving effect to
distributions made, or any Realized Losses or Additional Trust Fund Expenses
applied, as of such Distribution Date. The manner in which principal is
distributed in reduction of the Uncertificated Principal Balances of the Class
MG, Class MH, Class MJ and Class MK Uncertificated Interests, respectively,
shall be as follows on any Distribution Date: to the Class MG Uncertificated
Interest, then to the Class MH and Class MJ Uncertificated Interests pro rata
then to the Class MK Uncertificated Interest until the Principal Balance of each
has been reduced to zero. With respect to the Class MA-1, Class MA-2, MA-3,
Class MA-4, Class MA-1C and Class MA-2C Uncertificated Interests (i) for the
October 2000 Distribution Date, an amount equal to the initial principal amount
of such Class as specified in the Preliminary Statement hereto, and (ii) as of
any date determination after the October 2000 Distribution Date, an amount equal
to the aggregate of the Class Principal Balances of the Class A-1A, Class A-2A,
Class A-1B, Class A-2B and Class A-3B Certificates on the Distribution Date
immediately prior to such date of determination, and as to each such Class of
REMIC II Uncertificated Regular Interest, determined by applying (i) principal
distributed in reduction of the Class Principal Balances of the Class A-1A,
Class A-2A, Class A-1B, Class A-2B and Class A-3B Certificates in the manner
provided in the last sentence of this definition to each such Class of REMIC II
Uncertificated Regular Interests until the Certificate Principal Balance of the
Subordinated Certificates has been reduced to zero and pro rata thereafter and
(ii) any Realized Losses and Additional Trust Fund Expenses applied in reduction
of the Class Principal Balances of the Class A-1A, Class A-2A, Class A-1B, Class
A-2B and Class A-3B Certificates pro rata among such Classes of REMIC II
Uncertificated Regular Interests. With respect to the Class MB, Class MC and
Class MD Uncertificated Interests and any Class of REMIC IIIU Uncertificated
Regular Interests, (i) for the October 2000 Distribution Date, an amount equal
to the initial principal amount of such Class as specified in the Preliminary
Statement hereto, and (ii) as of any date of determination after the October
2000 Distribution Date, an amount equal to the Class Principal Balance of the
Class of Corresponding Certificates on the Distribution Date immediately prior
to such date of determination. The manner on which the principal distributed in
reduction of the Class Principal Balances of the Class A-1A, Class A-2A, Class
A-1B, Class A-2B and Class A-3B Certificates shall be applied in order to
determine the Uncertificated Principal Balances of the Class MA-1, Class MA-2,
Class MA-3, Class MA-4, Class MA-1C and Class MA-2C Uncertificated Interests,
respectively, shall be as follows on any Distribution Date: (i) first,
sequentially to the Class MA-1, Class MA-2, Class MA-3 and Class MA-4
Uncertificated Interests, in that order, until the Uncertificated Principal
Balance thereof has been reduced to zero, an amount up to the Group A Senior
Certificate Principal Distribution Amount for such Distribution Date; except
that for purposes of determining the Uncertificated Principal Balances of the
Class MA-1, Class MA-2, Class MA-3 and Class MA-4 Uncertificated Interests, the
Group A Senior Certificate Principal Distribution Amount will not be deemed to
include any amount attributable to a Conduit Loan and will be deemed to include
any portion of the Principal Distribution Amount for the Mortgage Loans in Group
B for such Distribution Date that represents scheduled payments, Balloon
Payments, Principal Prepayments, Liquidation Proceeds and REO Revenues to the
extent allocable to principal, (ii) second, sequentially to the Class MA-1C,
Class MA-2C, Class MA-1, Class MA-2, Class MA-3 and Class MA-4 Uncertificated
Interests, in that order, until the Uncertificated Principal Balance thereof has
been reduced to zero, an amount up to the remaining portion of the Principal
Distribution Amount for such Distribution Date remaining after the distribution
described in the preceding clause (i).
"Underwriter": Banc of America Securities LLC.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in the applicable
Treasury regulations) or other entity created or organized in, or under the laws
of, the United States, any state or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such U.S. Persons have the authority to control all substantial decisions
of the trust (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"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, 97.0% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Sequential Pay Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
3.0% of the Voting Rights shall be allocated to the Holders of the Class X
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and REO Loans, weighted on the basis of the
respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Weighted Average Master Servicing Fee Rate": 13.981 basis points,
or 0.13981% per annum.
"Withheld Amounts": As defined in Section 4.05.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Period": As defined in the Prospectus Supplement.
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Group of
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each of the Mortgage Loans constituting such Group. All amounts collected in
respect of or allocable to any particular individual Mortgage Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of
payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be
applied for purposes of this Agreement (including, without limitation, for
purposes of determining distributions on the Certificates pursuant to Article IV
and additional compensation payable to the Master Servicer, the Special Servicer
and any Sub-Servicers) as follows: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any Default Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan other than remaining unpaid principal;
and, tenth, as an early recovery of any remaining principal of such Mortgage
Loan to the extent of its entire remaining unpaid principal balance. The Master
Servicer shall, to the fullest extent permitted by applicable law and the
related Mortgage Loan documents, apply all payments on and proceeds of each
Mortgage Loan to amounts actually due and owing from the related Mortgagor in a
manner consistent with the foregoing and shall maintain accurate records of how
all such payments and proceeds are actually applied and are applied for purposes
of this Agreement.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be applied for purposes of
this Agreement (including, without limitation for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest on the
related REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt; third, as a recovery of principal of the
related REO Loan to the extent of its entire unpaid principal balance; fourth,
as a recovery of any Prepayment Premium then due and owing under such REO Loan;
and, fifth, as a recovery of any other amounts (including, without limitation,
Default Charges) deemed to be due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount of such fees
and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the Master Servicer, on the one hand, and such of
those fees and charges as are payable to the Special Servicer, on the other, pro
rata in accordance with their respective entitlements, and such payments so made
shall constitute the sole amount that will be paid to the Master Servicer and
the Special Servicer with respect thereto.
(d) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the reports to be delivered thereby pursuant to Section 4.02(b).
SECTION 1.03 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement. Wells Fargo Bank Minnesota,
N.A., is hereby appointed, and does hereby agree to act, as Trustee hereunder
and, in such capacity, to hold the Trust Fund in trust for the exclusive use and
benefit of all present and future Certificateholders. It is not intended that
this Agreement create a partnership or a joint-stock association.
(b) Each of the NB Owner Trust and, at the direction of the
Depositor given pursuant to the Mortgage Loan Purchase and Sale Agreement, the
Mortgage Loan Seller, concurrently with its execution and delivery hereof, does
hereby assign, transfer, sell and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the NB Owner Trust and the Mortgage Loan Seller, respectively, in,
to and under the Mortgage Loans identified on the Mortgage Loan Schedule and all
other assets included or to be included in REMIC I. Such assignment includes (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 or receivable after
the Original Cut-off Date (other than payments of principal, interest and other
amounts due and payable on the Mortgage Loans on or before the Original Cut-off
Date) together with all documents delivered or caused to be delivered hereunder
with respect to such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO
Property acquired in respect of a Mortgage Loan; and (iii) such funds or assets
as from time to time are deposited in the Certificate Account, the Distribution
Account, the REMIC II Distribution Account, the REMIC III Distribution Account,
the REMIC IIIU Distribution Account, the REMIC IV Distribution Account, the
Interest Reserve Account and the REO Account (if established).
It is intended that the conveyance of the Mortgage Loans and the
related rights and property by the NB Owner Trust and the Mortgage Loan Seller
to the Trustee, as provided in this Section be, and be construed as, an absolute
transfer of the Mortgage Loans to the Trustee for the benefit of the
Certificateholders. It is, further, not intended that such conveyance be deemed
a pledge of the Mortgage Loans to the Trustee to secure a debt or other
obligation of the NB Owner Trust or the Mortgage Loan Seller, as the case may
be. However, in the event that the Mortgage Loans are held to be property of the
NB Owner Trust or the Mortgage Loan Seller, or if for any reason this Agreement
is held or deemed to create a security interest in the Mortgage Loans, then it
is intended that, (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyance provided for in this Section shall be deemed
to be a grant by the NB Owner Trust and the Mortgage Loan Seller to the Trustee,
for the benefit of the Certificateholders, of a security interest in all of
their respective right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Notes, the Mortgages, any related insurance policies and all other documents in
the related Mortgage Files, (B) all amounts payable to the holders of the
Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from time
to time held or invested in the Certificate Account, the Distribution Account,
the REMIC II Distribution Account, the REMIC III Distribution Account, the REMIC
IIIU Distribution Account, the REMIC IV Distribution Account, the Interest
Reserve Account or the REO Account, whether in the form of cash, instruments,
securities or other property; (iii) the possession by the Trustee or its agent
of the Mortgage Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or a Person
designated by such secured party, for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Section 9-305 or 9-115 thereof); and (iv) notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such property
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. The NB Owner Trust, the Mortgage Loan Seller and the Trustee
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. At the Depositor's
direction, the Trustee shall execute and deliver, and the Master Servicer shall
(at its expense) file, all filings necessary to maintain the effectiveness of
any original filings necessary under the Uniform Commercial Code as in effect in
any jurisdiction to perfect and maintain the Trustee's security interest in or
lien on the Trust Fund, including without limitation (A) continuation statements
and (B) such other statements as may be occasioned by any transfer of any
interest of the Trustee, the Master Servicer, the Special Servicer or the
Depositor in the Trust Fund. In connection herewith, the Trustee shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction. The Depositor shall
provide the Master Servicer and the Special Servicer with a power of attorney in
a form sufficient to permit the Master Servicer and the Special Servicer to
correct any deficiencies in such filings.
(c) In connection with the assignment pursuant to subsection (b)
above, the Mortgage Loan Seller (at the direction of the Depositor or the NB
Owner Trust, as the case may be, pursuant to the Mortgage Loan Purchase and Sale
Agreement) shall 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 Original Closing Date, the Mortgage File for
each Mortgage Loan so assigned by the Mortgage Loan Seller hereunder. If the
Mortgage Loan Seller is unable to deliver or cause the delivery of any original
Mortgage Note, it may deliver a copy of such Mortgage Note, together with a lost
note affidavit, and shall thereby be deemed to have satisfied the document
delivery requirements of this Section 2.01(c). If the Mortgage Loan Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A) and (xiii) of the definition of "Mortgage
File", with evidence of recording or filing (as the case may be) thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, as the case
may be, the delivery requirements of this Section 2.01(c) shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple loans, documents and/or
instruments) by the Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Original Closing Date, and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to the Trustee or such Custodian within 180 days
of the Original Closing Date (or within such longer period after the Original
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the Mortgage Loan Seller has provided the
Trustee with evidence of such submission for recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such submission
for recording or filing, as the case may be, and is, as certified to the Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate recording or filing office such original or copy). If the Mortgage
Loan Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iii), (v), and (xi)(B) of the definition of "Mortgage File",
because such document or instrument has been delivered for recording or filing,
as the case may be, the delivery requirements of this Section 2.01(c) shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for recording or filing, as the
case may be) is delivered to the Trustee or a Custodian appointed thereby on or
before the Original Closing Date, and either the original of such missing
document or instrument, or a copy thereof, with evidence of recording or filing,
as the case may be, thereon, is delivered to the Trustee or such Custodian
within 180 days of the Original Closing Date (or within such longer period after
the Original Closing Date as the Trustee may consent to, which consent shall not
be unreasonably withheld so long as the Mortgage Loan Seller has provided the
Trustee with evidence of such submission for recording or filing, as the case
may be, or has certified to the Trustee as to the occurrence of such submission
for recording or filing, as the case may be, and is, as certified to the Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate recording or filing office such original or copy). If the Mortgage
Loan Seller cannot so deliver, or cause to be delivered, as to any Mortgage
Loan, the original or a copy of the related lender's title insurance policy
referred to in clause (ix) of the definition of "Mortgage File" solely because
such policy has not yet been issued, the delivery requirements of this Section
2.01(c) shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Mortgage Loan Seller shall have delivered to the Trustee or a
Custodian appointed thereby, on or before the Original Closing Date, a binding
commitment for title insurance "marked-up" at the closing of such Mortgage Loan,
and the Mortgage Loan Seller shall deliver to the Trustee or such Custodian,
promptly following the receipt thereof and in any event within 180 days of the
Original Closing Date, the original related lender's title insurance policy (or
a copy thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any Group of related
Cross-Collateralized Mortgage Loans only one original of any document referred
to in the definition of "Mortgage File" covering all the Mortgage Loans in such
Group, then the inclusion of the original of such document in the Mortgage File
for any of the Mortgage Loans in such Group shall be deemed an inclusion of such
original in the Mortgage File for each such Mortgage Loan. None of the Trustee,
any Custodian, the Depositor, the Master Servicer or the Special Servicer shall
in any way be liable for any failure by the Mortgage Loan Seller to comply with
the delivery requirements of this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File" are delivered to the Trustee in blank, the Trustee
shall be responsible for completing promptly the related endorsement in the name
of the Trustee (in such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan, at its
own expense, promptly (and in any event within 45 days of the Original Closing
Date, unless recording/filing information is not available by such time for
assignments solely due to recorder's office delay, in which case such submission
shall be made promptly after such information does become available from the
recorder's office) submit or 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, each assignment referred to in clauses
(iii) and (v) of the definition of "Mortgage File" and each UCC-1, UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of the definition of "Mortgage
File". The Mortgage Loan Seller shall provide the Directing Certificateholder
with written notice when such documents have been submitted for recording. Each
such assignment shall reflect that it should be returned by the public recording
office to the party responsible for filing it, who will then forward the
original recorded document to the Trustee, and each such UCC-1, UCC-2 and UCC-3
shall reflect that the file copy thereof should be returned to the party
responsible for filing it, and who will then forward such document to the
Trustee. At such time as such assignments, UCC-1s, UCC-2s and UCC-3s have been
returned to the Trustee, the Trustee shall periodically forward a copy of each
thereof to the Master Servicer. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Mortgage Loan Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and thereafter the Mortgage Loan Seller shall, at its own expense, submit
the substitute or corrected documents or cause such to be submitted for
recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's
possession (or under its control) relating to the Mortgage Loans (except
attorney-client privileged communications or confidential internal credit
analysis of the client) that are not required to be a part of a Mortgage File in
accordance with the definition thereof, together with all Escrow Payments and
Reserve Funds in the possession of the Mortgage Loan Seller (or under its
control) with respect to the Mortgage Loans, shall be delivered or caused to be
delivered by the Mortgage Loan Seller to the Master Servicer, within five (5)
Business Days of the Original Closing Date, and shall be retained by the Master
Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(f) The Mortgage Loan Seller shall, as to each Mortgage Loan which
is secured by the interest of the related Mortgagor under a Ground Lease, at its
own expense, promptly (and in any event within 45 days of the Original Closing
Date) notify the related ground lessor of the transfer of such Mortgage Loan to
the Trust 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 Trustee.
(g) In connection with its assignment of the Conduit Mortgage Loans
hereunder, each of the Mortgage Loan Seller and the NB Owner Trust hereby
expressly assigns to the Trustee for the benefit of the Certificateholders any
and all rights the Mortgage Loan Seller or the NB Owner Trust may have with
respect to representations and warranties made by an NB Conduit Originator with
respect to any Mortgage Loan under the mortgage loan purchase agreement between
the Mortgage Loan Seller and the NB Conduit Originator that originated such
Mortgage Loan pursuant to which the Mortgage Loan Seller originally acquired
such Mortgage Loan from such NB Conduit Originator. In the event such Mortgage
Loan is repurchased by the Mortgage Loan Seller, the Trustee shall re-assign
such rights under the relevant mortgage loan purchase agreement to the Mortgage
Loan Seller in respect of such Mortgage Loan.
SECTION 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to any
exceptions noted on the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule XXIII, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee, an original or
a copy of the Mortgage (with evidence of recording thereon), and an original
assignment of such Mortgage executed in favor of the Trustee (in such capacity),
in good faith and without notice of any adverse claim, and declares that it or a
Custodian on its behalf holds and will hold the documents delivered or caused to
be delivered by the Mortgage Loan Seller in respect of the Mortgage Loans, and
that it holds and will hold all other assets included in REMIC I, in trust for
the exclusive use and benefit of all present and future Certificateholders.
(b) Within 60 days of the Original Closing Date, the Trustee or a
Custodian on its behalf shall review each of the documents delivered or caused
to be delivered by the Mortgage Loan Seller with respect to each Mortgage Loan
pursuant to Section 2.01(c); and, promptly following such review, the Trustee
shall, subject to Section 2.02(d), certify in writing (substantially in the form
of Exhibit I) to each of the Depositor, the Master Servicer, the Special
Servicer, the Directing Certificateholder and the Mortgage Loan Seller that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or otherwise liquidated), and except as specifically
identified in any exception report annexed to such certification, (i) all
documents specified in clauses (i) through (iii), (ix) (without regard to the
verification of the effective date) and, if the Mortgage Loan Schedule specifies
that the related Mortgagor has a leasehold interest in the related Mortgaged
Property, (xiii) of the definition of "Mortgage File" are in its possession or
the possession of a Custodian on its behalf, or the Mortgage Loan Seller has
otherwise satisfied the delivery requirements in respect of such documents in
accordance with Section 2.01(c), (ii) all documents received by it or any
Custodian in respect of such Mortgage Loan have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses, (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File. If within 60 days of
the Original Closing Date the Trustee shall receive notice of any Mortgage Loan
as to which a Servicing Transfer Event or substitution has occurred during such
60-day period, the Trustee shall, upon receipt of a Request for Review
(substantially in the form of Exhibit M), promptly review the Mortgage File
delivered or caused to be delivered by the Mortgage Loan Seller with respect to
such Mortgage Loan. Such review and the certification regarding the same shall
be conducted and prepared in accordance with the standards of review set forth
in this paragraph.
(c) The Trustee or a Custodian on its behalf shall review each of
the documents relating to the Mortgage Loans received thereby subsequent to the
Original Closing Date; and no later than 180 days after the Original Closing
Date, and subsequently no later than one (1) year after the Original Closing
Date and, if any exceptions are noted, every 90 days thereafter until either (i)
all exceptions have been removed, or (ii) the second anniversary of the Original
Closing Date, the Trustee shall, subject to Section 2.02(d), certify in writing
(substantially in the form of Exhibit H) to each of the Depositor, the Master
Servicer, the Special Servicer, the Directing Certificateholder and the Mortgage
Loan Seller that as to each Mortgage Loan listed on the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or otherwise liquidated), and except
as specifically identified in any exception report annexed to such
certification, (i) all documents specified in clauses (i), (ii), (ix) (without
regard to the verification of the effective date) and, if the Mortgage Loan
Schedule specifies that the related Mortgagor has a leasehold interest in the
related Mortgaged Property, (xiii) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, or the Mortgage
Loan Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) it or a Custodian on its
behalf has received either the original or copy of each of the assignments
specified in clauses (iii) and (v) of the definition of "Mortgage File" that
were delivered by the Mortgage Loan Seller with evidence of recording thereon,
(iii) all documents received by it or any Custodian in respect of such Mortgage
Loan have been reviewed by it or by such Custodian on its behalf and appear
regular on their face and relate to such Mortgage Loan, and (iv) based on the
examinations referred to in subsection (b) above and this subsection (c) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (iv) and (vi)(B) of
the definition of "Mortgage Loan Schedule", is correct and the Mortgage Rate set
forth in clause (iii)(a) of the definition of "Mortgage Loan Schedule" matches
the Mortgage Rate in effect on the date of origination or of the most recent
written amendment to such Mortgage Rate which is contained in the Mortgage File.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iv) through (viii), (x) and (xi), and (xiv)
through (xxii) of the definition of "Mortgage File" exist or are required to be
delivered by the Mortgage Loan Seller in respect of any Mortgage Loan, or (ii)
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, none of the Trustee, the Master
Servicer, the Special Servicer or any Custodian shall have any liability because
the text of any assignment or endorsement is not in proper or recordable form,
if the requisite recording of any document is not in accordance with the
requirements of any applicable jurisdiction, or if a blanket assignment is not
permitted in any applicable jurisdiction.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Seller pursuant to Section 2.01(c),
the Trustee or any Custodian discovers that any document required to have been
delivered pursuant to Section 2.01(c) has not been so delivered, or discovers
that any of the documents that were delivered has not been properly executed,
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or is
defective on its face (each, including, without limitation, that a document is
missing, a "Document Defect"), or if, at any other time, the Trustee or any
other party hereto discovers a Document Defect in respect of any Mortgage Loan,
the party discovering such Document Defect shall promptly so notify each of the
other parties hereto. If and when such party is notified of or discovers any
error in the Mortgage Loan Schedule, the Mortgage Loan Seller shall promptly,
but in any event within thirty (30) days, correct such error and distribute a
new, corrected Mortgage Loan Schedule to each of the other parties hereto. Such
new, corrected Mortgage Loan Schedule shall be deemed to amend and replace the
existing Mortgage Loan Schedule.
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and Warranties.
(a)
(i) Within 90 days of the earlier of discovery or receipt of
written notice by the Mortgage Loan Seller, of a Document Defect in
respect of any Mortgage Loan or a breach of any representation or warranty
set forth in Section 2.05(b) in respect of any Mortgage Loan, which
Document Defect or breach, as the case may be, as determined by the
Trustee, subject to Sections 8.01 and 8.02 and its right to reimbursement
pursuant to Section 8.05(b), materially and adversely affects the value of
such Mortgage Loan or the interests of the Certificateholders therein, the
Mortgage Loan Seller shall cure such Document Defect or breach, as the
case may be, in all material respects or repurchase (or cause an Affiliate
to purchase) the affected Mortgage Loan at the applicable Purchase Price
by deposit of such Purchase Price into the Certificate Account and
delivery to the Trustee and the Master Servicer of a written certification
that such deposit has been made; provided, that, without limiting any of
the foregoing, the absence from the Mortgage File of: (v) the original
fully executed Mortgage Note, together with the endorsements identified in
clause (i) of the definition of Mortgage File; (w) the original fully
executed Mortgage (unless there is included in the Mortgage File a
certified copy of the Mortgage and the certificate states that the
original signed Mortgage was sent for recordation within the previous 180
days); (x) a title insurance policy or a copy thereof effective as of the
date of the recordation of the Mortgage Loan, together with all
endorsements or riders that were issued with or subsequent to the issuance
of such policy, insuring the priority of the Mortgage as a first lien on
the Mortgagor's fee interest in the Mortgaged Property, or if the policy
has not yet been issued, an original or copy or a written binding
commitment "marked up" at the closing of such Mortgage Loan, interim
binder or pro forma title insurance policy, evidencing a binding
commitment to issue such policy, dated as of the date on which related
Mortgage Loan was funded; (y) any material nonconformity to the Mortgage
Loan Schedule of any such document or any material irregularity on the
face thereof; or (z) copies of the Assignment Documents, together with
proof of recordation if the Mortgage Loan Seller deems proof of
recordation to be material, reflecting the chain of assignment of the
Mortgage Loan to the Trust (without the presence of any factor, such as a
lost note affidavit with an acceptable indemnity in the case of a missing
Mortgage Note, that reasonably mitigates such absence, non-conformity or
irregularity) shall be conclusively presumed to be a Document Defect that
materially and adversely affects the interests of the Certificateholders
in, or the value of, any Mortgage Loan, and shall obligate the party
discovering such to give the aforementioned prompt notice, whereupon the
Trustee shall notify the Depositor to cure such Document Defect, or,
failing that, repurchase the related Mortgage Loan, all in accordance with
the procedures set forth herein. However, with respect to non-Specially
Serviced Mortgage Loans only, if such Document Defect or breach is capable
of being cured but not within the 90 day period and the Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such
Document Defect or breach within such 90 day period (as evidenced by an
Officer's Certificate of the Mortgage Loan Seller delivered to the
Trustee, the Special Servicer and the Master Servicer setting forth the
circumstances surrounding such delay, the measures being undertaken to
cure such Document Defect or breach and a representation that it is
diligently pursuing such measures), the Mortgage Loan Seller shall have,
with respect to non-Specially Serviced Mortgage Loans only, an additional
90 days to complete such cure (or, failing such cure, to repurchase the
related Mortgage Loan). Notwithstanding the immediately preceding
sentence, within 90 days of the earlier of discovery or receipt of written
notice by the Mortgage Loan Seller that there is a Document Defect or
other breach of the representations and warranties set forth in Section
2.05(b)(xxxi), (lii), (liii) or (liv) (that causes any Mortgage Loan to
not constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, without regard to the rule of Treasury Regulations
Section 1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage for a temporary period), the Mortgage Loan Seller shall either
cure such defect or breach or repurchase such Mortgage Loan at the
applicable Purchase Price by deposit of such Purchase Price into the
Certificate Account and delivery to the Trustee of a written certification
that such deposit has been made.
(ii) In the event of discovery of a breach of the representation
and warranty as to environmental conditions under Section 2.05(b)(xiv)
with respect to the Portfolio Mortgage Loans, the Mortgage Loan Seller
shall have an opportunity to cure such breach. However, the breach will be
deemed to have been cured if and only if the Special Servicer (or, if the
Mortgage Loan Seller shall be designated as the Special Servicer, another
independent Person designated by the Master Servicer) shall have
determined in good faith that (a) the Mortgage Loan Seller has either
caused the condition that was the cause of such breach to be eliminated,
or has established a reserve for the costs of remediation of the condition
that was the cause of such breach and has instituted a program which was
reasonably expected to remediate such condition within two years after the
program was instituted; (b) the estimated cost to cure is less than 50% of
the then-outstanding principal balance of the Mortgage Loan (provided,
however, that the estimated cost to cure shall be less than 25% of the
then-outstanding principal balance of the Mortgage Loan if such balance is
then greater than $3,000,000.00); and, (c) retention of such Mortgage Loan
in the Mortgage Pool would not violate the Servicing Standard. The Master
Servicer shall not be entitled to Advance Interest from the Trust with
respect to Advances made by it with respect to such Mortgage Loan until
any such breach is cured or the Mortgage Loan repurchased, but shall be
entitled to recover Advance Interest for such period from the Mortgage
Loan Seller and the Mortgage Loan Seller shall be obligated to pay such
Advance Interest to the Master Servicer at such time and to the same
extent that the Master Servicer would be entitled to be paid for such
Advance Interest pursuant to Section 3.05(a) (and in any event within 15
days after the Mortgage Loan Seller's receipt of an invoice thereof);
provided, however, if the Special Servicer, or the Trustee make such
Advances because of a failure of the Master Servicer to do so, then the
Special Servicer, or the Trustee shall be entitled to promptly recover
Advance Interest with respect to such Advances for such period, but only
from the Mortgage Loan Seller, and not from the Trust or the
Certificateholders. The Mortgage Loan Seller shall pay expenses of the
Trust incurred as a result of such breach. In addition, the Mortgage Loan
Seller shall pay any expenses incurred by the Master Servicer, the Special
Servicer or the Trustee (including reasonable attorney's fees) in
connection with the enforcement of the Mortgage Loan Seller's obligation
to pay Advance Interest pursuant to this Section 2.03(a)(ii).
(iii) In the event of discovery of a breach of the representation
and warranty as to there being no Mortgaged Property securing any mortgage
loan which is not included in the Trust under Section 2.05(b)(lxi) with
respect to the Portfolio Mortgage Loans, in order for the repurchase
requirements of Section 2.03(a)(i) to apply, all of the following
additional four (4) conditions must be satisfied:
(A) The related Mortgage Loan must be in default;
(B) The mortgage loan which is not included in the Trust must not
have been previously disclosed herein (including without
limitation in any schedule attached hereto) or the Prospectus
Supplement by the Mortgage Loan Seller;
(C) The mortgage loan which is not included in the Trust must
constitute a material additional indebtedness secured by the
related Mortgaged Property, as determined by the Master
Servicer or the Special Servicer, as applicable; and,
(D) The field on the Mortgage Loan Schedule entitled "Due on
Encumbrance" must have been incorrect as to the related
Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender or cause to be tendered to the Mortgage Loan
Seller, upon delivery to each of the Trustee, the Master Servicer and the
Special Servicer of a receipt executed by the Mortgage Loan Seller, all portions
of the Mortgage File and other documents and funds pertaining to such Mortgage
Loan possessed by it (or any Custodian or Sub-Servicer on its behalf), and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed or assigned, as the case may be, to or
at the direction of the Mortgage Loan Seller, in the same manner. The form,
sufficiency and expense of all such instruments and certificates shall be the
responsibility of the Mortgage Loan Seller.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(b) hereof. If the Mortgage Loan Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Mortgage Loan Seller is
required to repurchase such Mortgage Loan under Section 2.03(a) hereof, the
Mortgage Loan Seller shall reimburse the Trustee for all necessary and
reasonable costs and expenses incurred in connection with such enforcement, and
otherwise the Trustee's right of reimbursement shall be limited to amounts on
deposit in the Distribution Account from time to time in accordance with Section
8.05(b) and to such other sources of security and indemnity as shall have been
offered to the Trustee by the Certificateholders.
(d) With respect to any Cross-Collateralized Mortgage Loan, the
repurchase requirements of this Section 2.03 shall apply to any other Mortgage
Loans with which such Mortgage Loan is cross-collateralized or cross-defaulted,
but only if such other Mortgage Loans, singly or in the aggregate, are
materially and adversely affected by the default under, or breach of, the
repurchased Mortgage Loan, or by the removal of such Mortgage Loan from the
Trust. In addition, in the event any Cross-Collateralized Mortgage Loan is
repurchased from the Trust, the Master Servicer shall use reasonable efforts to
modify such Mortgage Loan so that it is no longer cross-collateralized, if
requested to do so by the Directing Certificateholder; provided that no such
modification shall be effected, nor such efforts commenced, unless and until the
Master Servicer and the Trustee have received from the Depositor, the Directing
Certificateholder or the Mortgage Loan Seller an Opinion of Counsel to the
effect that such modification will not cause an Adverse REMIC Event to occur.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders,
as of the Original Closing Date, the First Sequel Closing Date and the Second
Sequel Closing Date unless otherwise stated below, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(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) As of the Original Closing Date, 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 which would prohibit the
Depositor from entering into this Agreement or, 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) Assuming the accuracy of the representation and warranty
of the Mortgage Loan Seller made pursuant to Section 2.05(b)(i) hereof as
of the Original Closing Date, immediately prior to the transfer of the
Mortgage Loans by the Depositor to the Trustee hereunder, as of the
Original Closing Date, the Depositor had good and marketable title to, and
was the sole owner of, each such Mortgage Loan, free and clear of any and
all liens, encumbrances and other interests on, in or to such Mortgage
Loan.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Original Closing Date, the First Sequel Closing Date and the Second Sequel
Closing Date unless otherwise stated below, that:
(i) The Mortgage Loan Seller is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States. As of the Original Closing Date, the NB Owner Trust was
a business trust duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan Seller and, as of the Original Closing Date, the NB Owner Trust, and
the performance and compliance with the terms of this Agreement by the
Mortgage Loan Seller and, as of the Original Closing Date, the NB Owner
Trust, will not violate the Mortgage Loan Seller's or, as of the Original
Closing Date, the NB Owner Trust's organizational documents or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Each of the Mortgage Loan Seller and, as of the Original
Closing Date, the NB Owner Trust, 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 Mortgage Loan Seller and, as of the Original
Closing Date, the NB Owner Trust, enforceable against each of the Mortgage
Loan Seller and, as of the Original Closing Date, the NB Owner Trust 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) Neither the Mortgage Loan Seller nor, as of the Original
Closing Date, the NB Owner Trust, is 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 Mortgage Loan Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Mortgage Loan Seller or, as of the Original Closing
Date, the NB Owner Trust to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller or, as of the
Original Closing Date, the NB Owner Trust.
(vi) No litigation is pending or, to the best of the Mortgage
Loan Seller's knowledge, threatened against the Mortgage Loan Seller or,
as of the Original Closing Date, the NB Owner Trust which would prohibit
the Mortgage Loan Seller or, as of the Original Closing Date, the NB Owner
Trust from entering into this Agreement or, in the Mortgage Loan Seller's
or, as of the Original Closing Date, the NB Owner Trust's, good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Mortgage Loan Seller or, as of the Original Closing
Date, the NB Owner Trust to perform its obligations under this Agreement
or the financial condition of Mortgage Loan Seller or, as of the Original
Closing Date, the NB Owner Trust.
(vii) The Sub-Servicing Agreement in place as of the Original
Closing Date among the Master Servicer, ARCS Commercial Mortgage Co.,
L.P., a California limited partnership, Bank of America, N.A., Berkshire
Mortgage Finance Corporation, First Security Bank, N.A., L.J. Melody &
Company, Patrician Financial Company Limited Partnership and Prudential
MultiFamily Mortgage Inc. (successor in interest to WMF Washington
Mortgage Corp.) complies with the requirements of this Agreement
(viii) The Mortgage Loan Seller is in possession of all licenses
necessary to carry on its business, and is in compliance with the laws of
each state in which any Mortgaged Property is located, in each case to the
extent that the failure to be so in possession or compliance would have a
material and adverse effect upon the enforceability of the Mortgage Loan
or upon the practical realization against the related Mortgaged Property
of the principal benefits of the security intended to be provided thereby.
(b) As regards the Mortgage Loans:
Portfolio Mortgage Loan Representations
The Mortgage Loan Seller hereby represents and warrants
("Representing Party" with respect to each such representation and warranty so
made) with respect to each Portfolio Mortgage Loan, to the other parties hereto
and for the benefit of the Certificateholders, as of the date specified in such
representation and warranty or, if no such date is specified, as of the Original
Closing Date, that:
(i) Immediately prior to the transfer thereof by Representing Party or the
NB Owner Trust to the Depositor (or to the Trustee at the direction of
the Depositor), the Representing Party or the NB Owner Trust, as the
case may be, had good and marketable title to, and was the sole owner
and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan.
(ii) The Representing Party or the NB Owner Trust, as the case may be, had
full right and authority to sell, assign and transfer such Mortgage
Loan to the Depositor (or to the Trustee at the direction of the
Depositor).
(iii) The information pertaining to such Mortgage Loan set forth in the
Mortgage Loan Schedule was true, complete and correct in all material
respects as of the Original Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Original Cut-off Date or at any
time during the twelve month period prior thereto, more than thirty
(30) days delinquent in respect of any Monthly Payment of principal
and/or interest required thereunder, without giving effect to any
applicable grace period. Such non-delinquent status with respect to
principal and/or interest is not due to any advance made by the
Representing Party or the NB Owner Trust.
(v) Each Mortgage securing such Mortgage Loan was recorded in the
applicable jurisdiction and constitutes a valid first lien upon the
related Mortgaged Property, including, without limitation, all
buildings located thereon and all fixtures attached thereto (and such
Mortgaged Property is free and clear of all encumbrances and liens
having priority over the lien of such Mortgage), except for (A) the
lien of current real property taxes and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, (C) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding, (D) exceptions and exclusions specifically referred to in
the lender's title insurance policy issued in respect of such Mortgage
Loan and (E) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, the lien of the Mortgage for such other Mortgage
Loan (the exceptions set forth in the foregoing clauses (A), (B), (C),
(D), and (E), collectively, "Permitted Encumbrances"). Such Permitted
Encumbrances do not materially interfere with the security intended to
be provided by the related Mortgage(s), the current use of the related
Mortgaged Property, or the ability of the related Borrower to timely
pay in full the principal and interest on the Mortgage Loan.
Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in personal property, except that,
with respect to the Mortgage Loans secured by a Mortgaged Property
which is a hotel, healthcare facility, or theater, the Representing
Party represents that a UCC Financing Statement has been filed and/or
recorded in all places necessary to permit a valid security interest in
the personal property granted under such Mortgage; any security
agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates
a valid and enforceable first lien and first priority security interest
on the property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights
generally or by the application of general principles of equity), and
such personal property constitutes substantially all of the personal
property necessary to operate the Mortgagor's business. In the case of
each Mortgage Loan secured by a Mortgaged Property that is operated as
a hotel, healthcare facility, or theater, the related loan documents
contain such provisions as are necessary, and UCC Financing Statements
have been filed as necessary, in each case to perfect a valid security
interest in the related revenues with respect to such Mortgage Loan.
(vi) The lien of each related Mortgage is insured by an ALTA lender's title
insurance policy, or its equivalent as adopted in the applicable
jurisdiction, issued by a title insurance company authorized to do
business in the applicable jurisdiction, insuring the originator of the
related Mortgage Loan and its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of the
related Mortgage Loan after all advances of principal, subject only to
Permitted Encumbrances. The premiums due under such title insurance
policy have been paid, and to the Representing Party's actual
knowledge, each title insurance policy is in full force and effect and
no claims have been made under any title insurance policy. Each ALTA
policy is assignable to the Trustee without the consent of, or any
notice to, the insurer. The Representing Party has no knowledge of any
matter which would impair or diminish the coverage of such policy.
(vii) To the best of the Representing Party's knowledge, neither the
Representing Party nor the NB Owner Trust has waived any material
default, breach, violation or event of acceleration existing and
continuing on the Original Closing Date under the related Mortgage or
Mortgage Note.
(viii) There is no valid offset, right of rescission, defense or counterclaim
to such Mortgage Loan.
(ix) Except as indicated on Schedule P9, the Representing Party has no
actual knowledge (A) that there is any proceeding pending for the total
or partial condemnation of the related Mortgaged Property or (B) that
there is any material damage at the related Mortgaged Property that
materially and adversely affects the value of such Mortgaged Property.
(x) Such Mortgage Loan and the actions by or on behalf of the originator
thereof complied in all material respects with all requirements of
federal, state and local laws, including, without limitation, laws
pertaining to usury and relating to the origination, funding and
servicing of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully disbursed, and there
is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan and all other
documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan are each the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation or market value deficiency
legislation), enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Each related Mortgage contains
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the security, including realization by judicial
or, if applicable, non-judicial foreclosure.
(xiii) The terms of such Mortgage Loan require that the related Mortgaged
Property be insured by a fire and extended perils insurance policy,
issued by an insurer meeting the requirements of such Mortgage Loan and
covering not less than the greater of the replacement cost of the
Mortgage Property (with no deduction for depreciation) and the amount
necessary to avoid the operation of co-insurance provisions with
respect to such Mortgaged Property. If the related Mortgaged Property
is located in a 100-year floodplain, such Mortgaged Property is also
covered by a flood insurance policy meeting the requirements of the
related Mortgage Loan. All such insurance is in full force and effect.
With respect to the foregoing policies, to the best of our knowledge
(1) such insurance policy provides that it shall not be canceled,
endorsed, altered or reissued to effect a change in coverage unless
such insurer shall have first given the mortgagee under such Mortgage
Loan thirty days prior written notice, and no notice has been received
as of the date hereof; (2) all premiums required to be paid on such
policy have been paid; and (3) the Mortgage obligates the related
Mortgagor to maintain all such insurance and, upon such Mortgagor's
failure to do so, authorizes the mortgagee to purchase such insurance
at the Mortgagor's cost and expense and to seek reimbursement from such
Mortgagor.
(xiv) There is no material and adverse environmental condition or
circumstance affecting the Mortgaged Property, including, without
limitation, the presence of asbestos, lead based paint or radon that
materially and adversely affects the condition of the related Mortgaged
Property. This representation (xiv) acts independently of
representation (xiv(a)) regarding the Environmental Policy.
(xiv(a)) Each Portfolio Mortgage Loan is covered by the Environmental Policy;
all premiums therefor have been paid in full and such policy is in full
force and effect. All known environmental conditions, known "Pollution
Events" (as defined in the Environmental Policy), or circumstances
affecting the Portfolio Mortgaged Property have been disclosed to
Steadfast Insurance Company, the issuer of the Environmental Policy.
The premiums have been paid through the termination of the Trust Fund.
(xv) Such Mortgage Loan is not cross-collateralized with a mortgage loan
outside the Mortgage Pool.
(xvi) Except as contained in the related Mortgage File, the terms of the
Mortgage Note and Mortgage(s) for such Mortgage Loan have not been
impaired, waived, altered or modified in writing in any material
respect.
(xvii) There are no delinquent taxes, ground rents, insurance premiums,
assessments, including, without limitation, assessments payable in
future installments, or other similar charges outstanding (and, to the
actual knowledge of the Representing Party, at origination of such
Mortgage Loan, there were no delinquent water charges or sewer rents)
affecting the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged Property
consists of a fee simple and/or leasehold interest in all the real
property constituting a part of the Mortgaged Property.
(xix) Such Mortgage Loan is a whole loan and not a participation interest.
(xx) The assignment of the related Mortgage to the Trustee is in recordable
form and constitutes the legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee, and the assignment
of the related Assignment of Leases, if any, or of any other agreement
executed in connection with such Mortgage Loan to the Trustee
constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and environmental
remediation reserves) relating to such Mortgage Loan that were required
to be delivered to the mortgagee under the terms of the related loan
documents, have been received and, to the extent of any remaining
balances of such escrow deposits, are in the possession, or under the
control of the Representing Party or its agents (which shall include
the Master Servicer). All of the Depositor's, the Representing Party's
and the NB Owner Trust's, as applicable, rights with respect to such
deposits are conveyed hereunder.
(xxii) To the best of the Representing Party's knowledge, as of the date of
origination of such Mortgage Loan, as of the Original Cut-off Date, and
as of the Original Closing Date, the related Mortgaged Property was and
is free and clear of any mechanics' and materialmen's liens or liens in
the nature thereof which create a lien prior to that created by the
related Mortgage(s), except such liens as may be covered by a title
insurance policy.
(xxiii) To the extent required under applicable law as of the Original Closing
Date and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to
do business in the jurisdiction in which the related Mortgaged Property
is located at all times when it held the Mortgage Loan.
(xxiv) There is no material default, breach or event of acceleration existing
under the related Mortgage or Mortgage Note, and the Representing Party
has not received actual notice of any event that, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute such a material default, breach or event of
acceleration.
(xxv) Such Mortgage Loan does not contain any equity participation by the
lender, provide for any contingent or additional interest in the form
of participation in the cash flow of the related Mortgaged Property,
provide for the negative amortization of interest or provide for
interest-only payments without any principal amortization.
(xxvi) The related Mortgage(s) or Mortgage Note, together with applicable
state law, contains customary and enforceable provisions (subject to
the exceptions set forth in Portfolio Mortgage Loan Representations (v)
and (xii) above) such as to render the rights and remedies of the
holders thereof adequate for the practical realization against the
related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxvii) Such Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any substantially
similar successor provision).
(xxviii) The Representing Party or the originator of such Mortgage Loan
inspected, or caused to be inspected, the related Mortgaged Property
either (A) in connection with the origination of the Mortgage Loan or
(B) at least once since March 1999, except for Mortgage Loan No.
3056355 (Worthington Ford), which was last inspected in November 1997.
(xxix) No fraud with respect to such Mortgage Loan has taken place on the part
of the Representing Party or any originator affiliated with the
Mortgage Loan Seller, in connection with the origination of such
Mortgage Loan.
(xxx) The terms of such Mortgage Loan provide or, at lender's option, permit,
and the terms of this Agreement and any Sub-Servicing Agreement to
which such Mortgage Loan is subject provide for purposes of calculating
distributions on the Certificates and additional compensation payable
to the Master Servicer, the Special Servicer and any related
Sub-Servicer, that payments on and proceeds of such Mortgage Loan will
be applied to principal and interest at the related Mortgage Rate due
and owing at the time such payments or proceeds are received, prior to
being applied to any Default Charges, assumption fees and modification
fees then due and owing.
(xxxi) The servicing and collection practices used with respect to such
Mortgage Loan have been in all material respects legal and prudent and
have met customary standards utilized by prudent institutional
multifamily and commercial mortgage loan servicers, including the
collection of rent rolls and financial statements on at least an annual
basis to the extent that the Mortgagor is required to provide them
pursuant to the Mortgage.
(xxxii) Unless the related Mortgaged Property is owner occupied, the Mortgage
File for such Mortgage Loan contains an Assignment of Leases either as
a separate instrument or incorporated into the related Mortgage, which
was recorded in the applicable jurisdiction and which creates, in favor
of the holder, a valid, perfected and enforceable lien of the same
priority as the related Mortgage, in the rents and other property and
rights described therein; provided that the enforceability of such lien
is subject to applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting the enforcement of creditors'
rights generally, and by the application of the rules of equity. The
Representing Party has the full right to assign to the Trustee such
Assignment of Leases and the lien created thereby as described in the
immediately preceding sentence. No person other than the Mortgagor owns
any interest in any payment due under the related leases.
(xxxiii) As of the Original Closing Date, the related Mortgagor was not a debtor
in any federal bankruptcy proceeding, or, to the best of the
Representing Party's actual knowledge, a debtor in any state insolvency
proceeding.
(xxxiv) The Representing Party has no actual knowledge of any pending
litigation or other legal proceedings involving the related Mortgagor
or the related Mortgaged Property that can reasonably be expected to
materially interfere with the security intended to be provided by the
related Mortgage, the current use of the related Mortgaged Property, or
the current ability of the Mortgaged Property to generate Net Cash Flow
sufficient to service the Mortgage Loan.
(xxxv) Neither the related Mortgage Note nor the related Mortgage requires the
mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon
(i) payment in full of all amounts due under the related Mortgage Loan
or (ii) payment representing not less than the greater of 100% of the
value of the property being released (pro-rated using square footage or
another customary method), and 100% of the proceeds from the sale of
the property being released, but not to exceed 125% of the value of the
property being released, in the case of a partial release.
(xxxvi) (1) Such Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the
fair market value of the real property securing such Mortgage Loan was
at least equal to 80% of the principal amount of the Mortgage Loan (a)
at origination (or if the Mortgage Loan has been modified in a manner
that constitutes a deemed exchange under Section 1001 of the Code at a
time when the Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such
modification) or (b) at the Original Closing Date; provided that the
fair market value of the real property interest must first be reduced
by (A) the amount of any lien on the real property interest that is
senior to the Mortgage Loan (unless such senior lien also secures a
Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on a aggregated basis) and (B) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis).
(xxxvii) With respect to such Mortgage Loan, any prepayment premium constitutes
a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
(xxxviii)Under the terms of the related Mortgage, any insurance proceeds in
excess of de minimis amounts or any condemnation award with respect to
the Mortgaged Property will be applied (subject to applicable law)
either (1) to the repair or restoration of all or part of the related
Mortgaged Property or (2) to the payment of the outstanding principal
balance of the Mortgage Loan, together with accrued interest, it being
understood that in respect of a total or substantially total loss or
taking, only option (2) may apply.
(xxxix) If the related Mortgage is a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in the deed of trust, and no fees or
expenses are or will become payable to the trustee under the deed of
trust, except in connection with the sale or release of the Mortgaged
Property following default or payment of the Mortgage Loan.
(xl) If such Mortgage Loan is secured in whole or in part by the interest of
a Mortgagor under a Ground Lease and by the related fee interest, such
fee interest is subordinate to the related Mortgage and the related
Mortgage does not by its terms provide that it will be subordinated to
the lien of any mortgage or any other lien upon such fee interest.
(xli) With respect to any Mortgage Loan secured by a Mortgage constituting a
valid first lien on an unencumbered interest of the Mortgagor as lessee
under a Ground Lease of the related Mortgaged Property, but not by the
related fee interest in such Mortgaged Property, the Representing Party
represents and warrants that:
(A) Except as indicated on Schedule P41(A), the lessor under such
Ground Lease has agreed in writing that the Ground Lease may
not be amended, modified, canceled or terminated without the
prior written consent of the mortgagee;
(B) The Ground Lease is not subject to any liens or encumbrances
superior to, or of equal or lesser priority with, the
Mortgage. The Ground Lease is and, except as indicated on
Schedule P41(B), provides that it shall remain, prior to any
Mortgage or other lien upon the related fee interest;
(C) The Ground Lease or a memorandum thereof has been duly
recorded, and the ground lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage.
There has not been a material change in the terms of the
Ground Lease since its recordation;
(D) The related borrower's interest in the Ground Lease is
assignable to the Trustee upon notice to, but without the
consent of, the lessor thereunder (or if any such consent is
required, it has been obtained in writing prior to the
Original Closing Date) and in the event that it is so
assigned, it is further assignable by the Trustee and its
successors and assigns upon notice to, but without a need to
obtain the consent of, such lessor;
(E) As of the Original Closing Date, the Ground Lease is in full
force and effect and no default has occurred under the Ground
Lease and, to the Representing Party's actual knowledge, there
is no existing condition which, but for the passage of time or
the giving of notice, would result in a default under the
terms of the Ground Lease;
(F) Such Ground Lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the mortgagee or its assignee, if it takes possession of such
leasehold interest) that extends not less than 10 years beyond
the stated maturity of the related Mortgage Loan;
(G) Either (A) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of
the holder of the Mortgage Loan or (B) the related ground
lessor has granted the holder of the Mortgage Loan the right
to notice and an opportunity to cure any default or breach by
the lessee. Upon the foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof), the related Ground
Lease is assignable to the mortgagee under the leasehold
estate and its assigns without the consent of the ground
lessor thereunder;
(H) As of the origination of such Mortgage Loan, such Ground Lease
was in full force and effect and, to the Representing Party's
actual knowledge, no material default existed under such
Ground Lease;
(I) The Ground Lease is not subject to any liens or encumbrances
superior to, or of equal or lesser priority with, the
Mortgage;
(J) All rights of the mortgagee under such Mortgage Loan under
such Ground Lease and the related Mortgage (insofar as it
relates to the Ground Lease) may be exercised by or on behalf
of such mortgagee;
(K) Except as indicated on Schedule P41(K), such Ground Lease does
not permit any increase in the amount of rent payable by the
lessee thereunder during the term of the Mortgage Loan; and
(L) The Ground Lease is, and provides that it shall remain, prior
to any Mortgage or other lien upon the related fee interest.
(xlii) Such Mortgage Loan is recourse to the related Mortgagor (subject to any
applicable state anti-deficiency legislation or market value deficiency
legislation) except as such recourse may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xliii) No Mortgage Loan has been satisfied, canceled, rescinded or
subordinated in whole or (except in accordance with the terms thereof)
in part, and except as expressly contemplated by the related loan
agreement or other documents contained in the related Mortgage File, no
material portion of the Mortgaged Property has been released in whole
or in part.
(xliv) Such Mortgage Loan contains a "due-on-sale" clause that permits the
loan holder to accelerate the maturity of the loan if the related
Mortgagor sells the related property without the consent of the
Mortgagee (other than by reason of family and estate planning transfers
of less than a controlling interest in a Mortgagor, or a substitution
or release of collateral within the parameters of paragraph (xxxv)
above).
(xlv) The Representing Party is in possession of the related Mortgage File,
which contains the related Mortgage, Mortgage Note, Security Agreement
(if any) and all material amendments thereto.
(xlvi) Such Mortgage Loan requires the related Mortgagor to be qualified to do
business, and requires the related Mortgagor and the related Mortgaged
Property to be in material compliance with all regulations, licenses,
permits, authorizations, restrictive covenants and zoning and building
laws, in each case to the extent required by law or to the extent that
the failure to be so qualified or in compliance would not have a
material and adverse effect upon the enforceability of the Mortgage
Loan or upon the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be
provided thereby. The Representing Party has no actual knowledge that
as of the date of origination of such Mortgage Loan, and as of the
Original Closing Date, (A) the related Mortgagor was not in possession
of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related
Mortgaged Property as it was then operated and (B) all such licenses,
permits and authorizations were not valid and in full force and effect.
(xlvii) [Reserved]
(xlviii) The Representing Party has no actual knowledge of any pending action,
suit, proceeding, arbitration or governmental investigation against the
related Mortgagor or the related Mortgaged Property which, if adversely
decided, would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical realization
against the related Mortgaged Property of the principal benefits of the
security intended to be provided thereby.
(xlix) Such Mortgage Loan requires the related Mortgagor to provide annual
operating statements and rent rolls and such requirement has not been
modified, waived or amended.
(l) (A) None of the improvements that form part of any Mortgaged Property
lie outside the boundaries and restriction lines of such property in
any material respect, (B) no improvements on adjoining properties
encroach upon any Mortgaged Property in any material respect and (C) no
improvement forming part of such Mortgaged Property is in material
violation of applicable zoning laws or ordinances.
(li) The following statements are true of the related Mortgaged Property at
origination: (i) the Mortgaged Property is located on or adjacent to a
public road, or has access to an irrevocable easement permitting
ingress and egress, (ii) the Mortgaged Property is served by public
utilities, water and sewer (or septic facilities), (iii) the Mortgaged
Property is a separate tax parcel, (iv) the Mortgaged Property has
parking to the extent, if any, required under applicable law, and (v)
to the extent that the Mortgaged Property consists of two (2) or more
adjoining parcels, such parcels are contiguous.
(lii) Such Mortgage Loan was originated by the Representing Party, an
affiliate of the Representing Party, a predecessor in interest to the
Representing Party or an originator approved by the Representing Party,
such an affiliate or such a predecessor in interest, and such Mortgage
Loan was underwritten consistent in all material respects with the
standards of the Person originating such Mortgage Loan.
(liii) No Mortgage Loan contains a provision for any defeasance of mortgage
collateral.
(liv) In selecting the Mortgage Loans for sale, no selection procedure was
employed by the Representing Party which was intended to adversely
affect the interests of the Certificateholders.
(lv) Such Mortgage Loan was originated by or for a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
Federal or State authority, or by a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act (any of the foregoing, including the
Representing Party, a "Qualified Originator"); each Mortgaged Property
consists of one or more parcels of real property upon which is located
one or more commercial structures and otherwise meets the requirements
for eligibility under the Secondary Mortgage Market Enhancement Act of
1984 for commercial property.
(lvi) With respect to each Mortgage Loan originated by or for a Person that
is not a savings and loan association, savings bank, commercial bank,
credit union, insurance company, or similar institution which is
supervised and examined by a Federal or State authority, or by a
Mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of
the foregoing, including the Representing Party, a "Qualified
Originator), hereinafter a "Non-Qualified Originator":
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which
standards were the same as the Qualified Originator's in all
material respects), using application forms and related credit
documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related
credit documents before a commitment by the Non-Qualified
Originator was issued, and no such commitment was issued until
the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with
the Qualified Originator;
(D) the closing documents for the Mortgage Loan were prepared on
forms approved by the Qualified Originator, and, pursuant to
the Non-Qualified Originator's ongoing, standing relationship
with the Qualified Originator, either:
(i) such closing documents reflect the Qualified Originator
as the original mortgagee, and such Mortgage Loan was
actually funded by the Qualified Originator at the
closing thereof;
(ii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(iii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(i) The related loan documents do not contain any option which, if
exercised, would cause the Mortgage Loan to fail to qualify as a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code.
(ii) No holder of such Mortgage Loan has advanced funds or induced,
solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by the Mortgage
Loan, including taxes.
(iii) Except as indicated on Schedule P59, with respect to junior liens, such
Mortgage Loan does not permit the related Mortgaged Property to be
encumbered subsequent to the Original Closing Date by any lien junior
to or of equal priority with, or prior to, the lien of the related
Mortgage without the prior written consent of the holder thereof.
(iv) As of the Original Closing Date, no other person has been granted or
conveyed the right to service the Mortgage Loans or receive any
consideration in connection therewith, other than the Master Servicer,
the Special Servicer or any of their Sub-Servicers.
(v) Except as indicated on Schedule P61, and to the Representing Party's
actual knowledge, no Mortgaged Property secures any mortgage loan which
is not included in the Trust.
Conduit Mortgage Loan Representations
The Mortgage Loan Seller hereby represents and warrants (and,
accordingly, is the "Representing Party" with respect to each representation or
warranty so made) with respect to each Conduit Mortgage Loan, to the other
parties hereto and for the benefit of the Certificateholders, as of the date
specified in such representation and warranty or, if no such date is specified,
as of the Original Closing Date, that:
(i) Immediately prior to the transfer thereof by the
Representing Party or the NB Owner Trust to the Trustee, the Representing
Party or the NB Owner Trust, as the case may be, had good and marketable
title to, and was the sole owner and holder of, such Mortgage Loan, free
and clear of any and all liens, encumbrances and other interests on, in or
to such Mortgage Loan.
(ii) The Representing Party or the NB Owner Trust, as the case
may be, had full right and authority to sell, assign and transfer such
Mortgage Loan to the Trustee.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true, complete and correct in all
material respects as of the Original Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Original Cut-off
Date or at any time during the twelve-month period prior thereto, 30 days
or more delinquent in respect of any Monthly Payment of principal and/or
interest required thereunder, without giving effect to any applicable
grace period. Such non-delinquent status with respect to principal and/or
interest is not due to any advance made by the Representing Party or the
NB Owner Trust.
(v) Each Mortgage securing such Mortgage Loan was recorded in
the applicable jurisdiction with respect to the full amount of the
Mortgage Loan and constitutes a valid first lien upon the related
Mortgaged Property, including, without limitation, all buildings located
thereon and all fixtures attached thereto, subject only to (and such
Mortgaged Property is free and clear of all encumbrances and liens having
priority over or parity with the lien of such Mortgage, except for) (A)
the lien of current real property taxes and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, (C) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar proceeding
(provided that such tenants are performing under such leases), (D)
exceptions and exclusions specifically referred to in the lender's title
insurance policy issued or, as evidenced by a "marked-up" commitment, to
be issued in respect of such Mortgage Loan and (E) if such Mortgage Loan
is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the exceptions set forth in the
foregoing clauses (A), (B), (C), (D), and (E), collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage(s), the
current use of the related Mortgaged Property, or the ability of the
related Borrower to timely pay in full the principal and interest on the
Mortgage Loan. A UCC Financing Statement has been filed and/or recorded in
all places necessary to permit a valid security interest in the personal
property granted under such Mortgage; any security agreement, chattel
mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid and enforceable
first lien and first priority security interest on the property described
therein (except as enforceability may be limited by bankruptcy or other
laws affecting creditor's rights generally or by the application of
general principles of equity). In the case of each Mortgage Loan secured
by a Mortgaged Property that is operated as a hotel, the related loan
documents contain such provisions as are necessary, and UCC Financing
Statements have been filed as necessary, in each case to perfect a valid
security interest in the hotel revenues with respect to such Mortgage
Loan, and, in the case of each Mortgaged Property which constitutes a
hotel, healthcare facility, or theater, such personal property constitutes
substantially all the personal property required to operate such business.
(vi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title insurance
company or, to the knowledge of the Representing Party, a title company
qualified to issue title insurance in the relevant jurisdiction, insuring
the originator of the related Mortgage Loan, its successors and assigns,
as to the first priority lien of the Mortgage in the original principal
amount of the related Mortgage Loan after all advances of principal,
subject only to Permitted Encumbrances (or, if a title insurance policy
has not yet been issued in respect of any Mortgage Loan, a policy meeting
the foregoing description is evidenced by a binding commitment for title
insurance "marked-up" at the closing of such loan. The Representing Party
or its successors or assigns are the sole named insureds of such policy,
all premiums due thereunder have been paid, such policy is in full force
and effect, no claims have been made under such policy, and the
Representing Party has no knowledge of any matter which would impair or
diminish the coverage of such policy. Such policy contains no exclusion
for or affirmatively insures access to a public road. Such ALTA policy is
assignable to the Trustee without the consent of, or notification to, the
insurer.
(vii) Neither the Representing Party nor the NB Owner Trust
has waived any material default, breach, violation or event of
acceleration existing under the related Mortgage or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to
such Mortgage Loan.
(ix) Except as indicated on Schedule C9, (A) the Representing
Party has no actual knowledge that there is any proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property, and (B) there is no material damage at the related Mortgaged
Property that materially and adversely affects the value of such Mortgaged
Property.
(x) Such Mortgage Loan and the actions by or on behalf of the
Representing Party complied in all material respects with all requirements
of federal, state and local laws, including, without limitation, laws
pertaining to usury and relating to the origination, funding and servicing
of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing, insuring
or otherwise securing such Mortgage Loan are each the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any applicable
state anti-deficiency legislation), enforceable in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law). Each related Mortgage contains
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the security, including realization by
judicial or, if applicable, non-judicial foreclosure.
(xiii) As regards matters of insurance:
A. if the related Mortgaged Property is a commercial property, it is
insured by (1) a fire and extended perils insurance policy, issued
by an insurer meeting the requirements of such Mortgage Loan in an
amount, with no deductions for depreciation, not less than the
greater of (a) the replacement cost and (b) the amount necessary
to avoid the operation of any co-insurance provisions with respect
to such Mortgaged Property, (2) except if such Mortgaged Property
is operated as a mobile home park, rental insurance in an amount
equal to the gross rentals for at least a 12-month period (or, in
the case of a Mortgaged Property not having an elevator, for at
least a 6-month period), (3) comprehensive general liability
insurance coverage, covering at least $1,000,000 per occurrence,
and (4) except in the case of Mortgage Loans originated by Bank of
America NT&SA or as permitted by the Representing Party's
underwriting guidelines, broad form boiler and machinery
insurance.
B. If the related Mortgaged Property is a multifamily property, it is
insured by (1) a fire and extended perils insurance policy, issued
by an insurer meeting the requirements of such Mortgage Loan and
covering rent loss (for at least a 12-month period or, in the case
of a Mortgaged Property not having an elevator, for at least a
6-month period), (2) comprehensive general liability insurance
coverage, covering at least $1,000,000 per occurrence, and (3)
other insurance covering such other hazards, casualties,
liabilities and contingencies as required by the holder of the
Mortgage Loan and in such amounts and for such periods as required
by the holder of the Mortgage Loan.
C. If the related Mortgaged Property is located in a federally
designated special flood hazard area, the related Mortgagor is
required to maintain flood insurance in respect thereof (exclusive
of any parking lot or unused or undeveloped portion thereof).
D. With respect to all policies, (1) such insurance policy provides
that it shall not be canceled, endorsed, altered or reissued to
effect a change in coverage unless such insurer shall have first
given the mortgagee under such Mortgage Loan thirty days prior
written notice, and no notice has been received as of the date
hereof; (2) at least ten days prior to the expiration date of such
policy, the related Mortgage requires the Mortgagor to deliver to
the mortgagee under such Mortgage Loan a renewal policy in form
satisfactory to the holder of the Mortgage Loan; (3) all premiums
required to be paid on such policy have been paid; and (4) the
Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes
the mortgagee to purchase such insurance at the Mortgagor's cost
and expense and to seek reimbursement from such Mortgagor.
(xiv) In connection with or subsequent to the origination of
such Mortgage Loan, one or more Phase I Environmental Assessments (or an
update of a previously conducted assessment) were performed with respect
to the related Mortgaged Property since January 1, 1998, and the
Representing Party, having made no independent inquiry other than
reviewing the resulting report(s) and/or employing an environmental
consultant to perform the assessment(s) referenced herein, has no
knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in
the related report(s). Where such assessments disclosed the existence of
such a material condition or circumstance affecting a Mortgaged Property
and recommended that action be taken, (i) a party not related to the
related Mortgagor was identified as the responsible party for such
condition or circumstance, or (ii) the related Mortgagor was required to
obtain an operations and maintenance plan, or (iii) funds sufficient to
effect such action were escrowed, in each case consistent with any such
recommendation and in accordance with the underwriting standards of the
Representing Party. Each Mortgage requires the related Mortgagor to comply
with and to cause the related Mortgaged Property to be in compliance with
all applicable federal, state and local environmental laws and
regulations.
(xv) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage Loans in the
Mortgage Pool. Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
(xvi) The terms of the Mortgage Note and Mortgage(s) for such
Mortgage Loan have not been impaired, waived, altered or modified in any
material respect, except as specifically disclosed in the related Mortgage
File.
(xvii) There are no delinquent taxes, ground rents, insurance
premiums, assessments, including, without limitation, assessments payable
in future installments, or other similar outstanding charges (and, to the
actual knowledge of the Representing Party, at origination of such
Mortgage Loan, there were no delinquent water charges or sewer rents)
affecting the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold interest in all the
real property constituting a part of the Mortgaged Property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage to the Trustee is
in recordable form and constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee, and the
assignment of the related Assignment of Leases, if any, or of any other
agreement executed in connection with such Mortgage Loan to the Trustee
constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession, or
under the control of the Representing Party or its agents (which shall
include the Master Servicer), and all the Depositor's, the NB Owner
Trust's and the Representing Party's rights with respect thereto are
conveyed hereunder.
(xxii) As of the date of origination of such Mortgage Loan and
as of the Original Closing Date, the related Mortgaged Property was and is
free and clear of any mechanics' and materialmen's liens or liens in the
nature thereof which create a lien equal or prior to that created by the
related Mortgage(s).
(xxiii) Except as indicated on Schedule C23, no improvement
that was included for the purpose of determining the appraised value of
the related Mortgaged Property at the time of origination of such Mortgage
Loan lies outside the boundaries and building restriction lines of such
property to any material extent, and no improvements on adjoining
properties encroach upon such Mortgaged Property to any material extent,
and no improvement located on or forming part of such Mortgaged Property
is in material violation of any applicable zoning laws or ordinances
except to the extent that they may constitute legal non-conforming uses.
Any non-conformity with zoning laws constitutes a legal non-conforming use
or structure which, in the event of casualty or destruction, may be
restored or repaired to substantially the full extent of the use or
structure at the time of such casualty or destruction, or for which law
and ordinance insurance coverage has been obtained in amounts customarily
required by prudent commercial mortgage lenders in similar circumstances.
(xxiv) To the extent required under applicable law as of the
Original Closing Date and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan
was authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it held the Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and the
Representing Party has no actual knowledge of any event (other than
payments due but not yet delinquent) that, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains to
any matter otherwise covered by or disclosed in any other representation
and warranty made by the Representing Party with respect to the Conduit
Mortgage Loans in this Section 2.05(b).
(xxvi) If such Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subordinate to the related Mortgage and the
related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such fee
interest.
(xxvii) Such Mortgage Loan does not contain any equity
participation by the lender, provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or provide for the negative amortization of interest,
or provide for interest only payments without any principal amortization.
(xxviii) No holder of such Mortgage Loan has advanced funds or
induced, solicited or knowingly received any advance of funds from a party
other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by the Mortgage Loan,
including taxes.
(xxix) To the Representing Party's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage
loans, as of the date of origination of such Mortgage Loan, (A) the
related Mortgagor was in possession of all material licenses, permits and
authorizations required by applicable laws for the ownership and operation
of the related Mortgaged Property as it was then operated and (B) all such
licenses, permits and authorizations were valid and in full force and
effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in conduit Mortgage Loan
Representations (v) and (xii) above) such as to render the rights and
remedies of the holders thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the
security intended to be provided thereby.
(xxxi) Such Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without regard
to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any substantially similar
successor provision).
(xxxii) The Representing Party or the originator of such
Mortgage Loan inspected, or caused to be inspected, the related Mortgaged
Property in connection with the origination of the Mortgage Loan.
(xxxiii) No fraud with respect to such Mortgage Loan has taken
place on the part of the Representing Party or, to the knowledge of the
Representing Party, any originator, in connection with the origination of
such Mortgage Loan.
(xxxiv) The terms of such Mortgage Loan provide or, at
lender's option, permit, and the terms of this Agreement and any
Sub-Servicing Agreement to which such Mortgage Loan is subject provide for
purposes of calculating distributions on the Certificates and additional
compensation payable to the Master Servicer, the Special Servicer and any
related Sub-Servicer, that payments on and proceeds of such Mortgage Loan
will be applied to principal and interest at the related Mortgage Rate due
and owing at the time such payments or proceeds are received, prior to
being applied to any Default Charges, assumption fees and modification
fees then due and owing.
(xxxv) If such Mortgage Loan is, as of the Original Closing
Date, subject to a Sub-Servicing Agreement, such Sub-Servicing Agreement
provides that the related Sub-Servicer is not to receive any sub-servicing
compensation with respect to such Mortgage Loan during any period that
such Mortgage Loan is a Specially Serviced Mortgage Loan or an REO Loan
(except for any Termination Strip payable to a Sub-Servicer in connection
with a termination thereof without cause as contemplated by Section
3.22(d) hereof).
(xxxvi) The servicing and collection practices used with
respect to such Mortgage Loan have been in all material respects legal and
prudent and have met customary standards utilized by prudent institutional
multifamily and commercial mortgage loan servicers, including the
collection of rent rolls, financial statements and operating statements to
the extent that that Mortgagor is required to provide such pursuant to the
Mortgage Loan Documents.
(xxxvii) Unless the related Mortgaged Property is owner
occupied, the Mortgage File for such Mortgage Loan contains an Assignment
of Leases either as a separate instrument or incorporated into the related
Mortgage, which creates, in favor of the holder, a valid, perfected and
enforceable lien of the same priority as the related Mortgage, in the
property and rights described therein; provided that the enforceability of
such lien is subject to applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting the enforcement of creditors' rights
generally, and by the application of the rules of equity. The Representing
Party has the full right to assign to the Trustee such Assignment of
Leases and the lien created thereby as described in the immediately
preceding sentence. No person other than the Mortgagor owns any interest
in any payment due under the related leases.
(xxxviii) [Reserved].
(xxxix) If the related Mortgaged Property securing such
Mortgage Loan is encumbered by secured subordinated debt, then either (A)
the subordinate debt constitutes a "cash flow" mortgage loan (that is,
payments are required to be made thereon only to the extent that certain
net cash flow from the related Mortgaged Property (calculated in
accordance with the related loan documents) is sufficient after payments
on such Mortgage Loan have been made and certain expenses have been paid)
or (B) the holder of the subordinate debt has agreed not to foreclose on
the related Mortgaged Property so long as such Mortgage Loan is
outstanding and the Special Servicer on behalf of the Trust is not
pursuing a foreclosure action.
(xl) In the event fraud or intentional misrepresentation,
misapplication of sale proceeds, insurance proceeds, condemnation
proceeds, rents and profits or other sums received by the Mortgagor in its
capacity as the owner of the Mortgaged Property, or any violation of the
environmental covenants contained in the related loan documents was
committed by the Mortgagor in connection with the origination of a
Mortgage Loan, such Mortgage Loan becomes a recourse obligation of a
principal of the Mortgagor with respect to any damages resulting
therefrom, unless such Mortgage Loan is a Mortgage Loan as to which such
recourse was not required due to the incorporation of other terms under
the underwriting guidelines of the Mortgage Loan Seller, such as a higher
debt service coverage ratio or a lower loan-to-value ratio.
(xli) As of the Original Closing Date, the related Mortgagor
or any guarantor was not a debtor in any federal bankruptcy proceeding,
or, to the best of the Representing Party's actual knowledge, a debtor in
any state insolvency proceeding.
(xlii) There is no pending litigation or other legal
proceedings involving the related Mortgagor or the related Mortgaged
Property that can reasonably be expected to materially interfere with the
security intended to be provided by the related Mortgage, the current use
of the related Mortgaged Property, or the current ability of the Mortgaged
Property to generate Net Cash Flow sufficient to service the Mortgage
Loan.
(xliii) If such Mortgage Loan had a Original Cut-off Date
Balance greater than 1% of the Initial Pool Balance, then the related
Mortgagor has covenanted in its organizational documents (or its
organizational documents otherwise provide for it) to own no significant
asset other than the related Mortgaged Property, Mortgaged Properties
securing other Mortgage Loans and assets incidental to the ownership and
operation of such Mortgaged Property or Properties. In addition, except as
indicated on Schedule C43, if such Mortgage Loan had a Original Cut-off
Date Balance greater than 1% of the Initial Pool Balance, the related
Mortgagor has covenanted in its organizational documents and/or the
Mortgage Loan documents to be (for so long as such Mortgage Loan is
outstanding) a Single-Purpose Entity. Neither the Representing Party nor
the NB Owner Trust has waived such covenants and has no knowledge that any
such Mortgagor is not in compliance therewith as of the date of
origination of the Mortgage Loan.
(xliv) Except as indicated on Schedule C44, neither the
related Mortgage Note nor the related Mortgage requires the mortgagee to
release all or any material portion of the related Mortgaged Property from
the lien of the related Mortgage except upon (i) payment in full of all
amounts due under the related Mortgage Loan or (ii) a substitution of
government securities for such Mortgaged Property in a defeasance
complying with paragraph (liii) of this Section 2.05(b).
(xlv) Except as indicated on Schedule C45, such Mortgage Loan
does not permit the related Mortgaged Property to be encumbered subsequent
to the Original Closing Date by any lien junior to or of equal priority
with, or prior to, the lien of the related Mortgage without the prior
written consent of the holder thereof, and the Representing Party has no
actual knowledge that the Mortgaged Property secures any Mortgage Loan
outside the Trust.
(xlvi) With respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a nursing home or congregate
care facility:
(A) To the best of the Representing Party's knowledge (based on
due diligence customarily performed by prudent mortgage
lenders), as of the Original Cut-off Date, the healthcare
facility located on the related Mortgaged Property and the
operator with respect to such facility had all certificates
(including certificates of occupancy), licenses and permits
required by applicable law for the operation of such facility
and, to the extent such facility participates in Medicaid,
Medicare or other similar programs, such facility and operator
holds a valid certification for such participation,
appropriate for the level of care provided at such facility.
(B) To the best of the Representing Party's knowledge (based on
due diligence customarily performed by prudent mortgage
lenders), as of the Original Cut-off Date, the related
borrower or operator, as the case may be, with respect to the
related Mortgaged Property or its operation of the related
Mortgaged Property, was in compliance in all material respects
with all applicable federal laws and all applicable laws,
regulations, quality and safety standards and requirements of
the applicable state department of health, and the other
related Mortgage Loan documents require that so long as the
related Mortgage Loan remains outstanding the related
Mortgaged Property shall be operated in compliance in all
material respects with such applicable laws and requirements.
(C) Except as indicated on Schedule C46(C), the related Mortgage
Loan documents provide that (1) so long as the related
Mortgage Loan remains outstanding, the related Mortgaged
Property shall be operated in such a manner that the licenses,
permits and authorizations shall remain in full force and
effect, (2) without the lender's consent, the licenses,
permits and authorizations may not be (a) transferred to any
location other than the Mortgaged Property or (b) pledged as
collateral for any other loan or indebtedness and (3) so long
as the related Mortgage Loan remains outstanding, the borrower
may not without the lender's consent (a) rescind, withdraw,
revoke, amend, modify, supplement or otherwise alter the
nature, tenor or scope of the certificate of need for the
related Mortgaged Property, (b) amend or otherwise change the
related Mortgaged Property's authorized bed capacity and/or
the number of beds approved by the department of health, (c)
replace or transfer all or any part of any related Mortgaged
Property's beds to another site or location or (d) terminate,
materially modify, or materially amend a lease or management
contract in effect with respect to the related Mortgaged
Property.
(D) As of the Original Cut-off Date, all cost reports required to
be filed under the Medicare, Medicaid, or other similar
programs with respect to the related Mortgaged Property were
filed as required.
(E) As of the Original Cut-off Date, the Representing Party has no
actual knowledge that the related borrower or related operator
as the case may be, has failed to file within the time
permitted, including any extensions thereof, all such
Medicare, Medicaid or other similar program costs reports.
(F) As of the Original Cut-off Date, the Representing Party has no
actual knowledge that either the related borrower or operator,
as the case may be, with respect to the related Mortgaged
Property or its operation of such Mortgaged Property (A) is
subject to a material audit adjustment or material decrease in
reimbursement with respect to its participation in any
third-party reimbursement program or (B) has been notified
that any managed care or other third-party reimbursement
program contract is being or has been canceled, not renewed,
or downgraded in any material respect or that any such action
is pending, threatened, or contemplated.
(xlvii) [Reserved].
(xlviii) With respect to any Mortgage Loan secured by a
Mortgage constituting a valid first lien on an unencumbered interest of
the Mortgagor as lessee under a Ground Lease of the related Mortgaged
Property, but not by the related fee interest in such Mortgaged Property,
the Representing Party represents and warrants that:
(A) Except as indicated on Schedule C48(A), the lessor under such
Ground Lease has agreed in writing and included in the related
mortgage file that the Ground Lease may not be amended,
modified, canceled or terminated without the prior written
consent of the mortgagee;
(B) The Ground Lease is not subject to any liens or encumbrances.
Except as indicated on Schedule C48(B), the Ground Lease is,
and provides that it shall remain, prior to any Mortgage or
other lien upon the related fee interest;
(C) Except as indicated on Schedule C48(C), under the terms of the
Ground Lease and/or the related Mortgage, any related
insurance proceeds or condemnation award will be applied
either (1) to the repair or restoration of all or part of the
related Mortgaged Property, or (2) to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest, it being understood that in respect
of a total or substantially total loss or taking, only option
(2) may apply, subject to applicable law;
(D) The Ground Lease or a memorandum thereof has been duly
recorded, and the ground lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage.
There has not been a material change in the terms of the
Ground Lease since its recordation, with the exception of
written instruments that are part of the related Mortgage
File;
(E) The related borrower's interest in the Ground Lease is
assignable to the Trustee upon notice to, but without the
consent of, the lessor thereunder (or if any such consent is
required, it has been obtained in writing prior to the
Original Closing Date) or, in the event that it is so
assigned, it is further assignable by the Trustee and its
successors and assigns upon notice to, but without a need to
obtain the consent of, such lessor;
(F) As of the Original Closing Date, the Ground Lease is in full
force and effect and no default has occurred under the Ground
Lease and, to the Representing Party's actual knowledge, there
is no existing condition which, but for the passage of time or
the giving of notice, would result in a default under the
terms of the Ground Lease;
(G) Except as indicated on Schedule C48(G), the Ground Lease
requires the lessor thereunder to enter into a new lease with
the lender upon termination of the ground lease for any
reason, including rejection of the Ground Lease in a
bankruptcy proceeding;
(H) Except as indicated on Schedule C48(H), all rights of the
mortgagee under such Mortgage Loan under such Ground Lease and
the related Mortgage (insofar as it relates to the Ground
Lease) may be exercised by or on behalf of such mortgagee;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by an institutional investor; and the lessor thereunder is not
permitted to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee in the relevant
portion of the related Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which would
materially and adversely affect the security provided by the
related Mortgage;
(J) Except as indicated on Schedule 48(J), such Ground Lease does
not permit any increase in the amount of rent payable by the
lessee thereunder during the term of the Mortgage Loan;
(K) Either (A) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of
the holder of the Mortgage Loan or (B) the related ground
lessor has granted the holder of the Mortgage Loan the right
to notice and an opportunity to cure any default or breach by
the lessee. Upon the foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof), the related Ground
Lease is assignable to the mortgagee under the leasehold
estate and its assigns without the consent of the ground
lessor thereunder;
(L) Such Ground Lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the mortgagee if it takes possession of such leasehold
interest) that extends not less than 10 years beyond the
stated maturity of the related Mortgage Loan; and
(M) As of the origination of such Mortgage Loan, such Ground Lease
was in full force and effect and, to the Representing Party's
actual knowledge, no material default existed under such
Ground Lease.
(xlix) Such Mortgage Loan was originated by or for a savings
and loan association, savings bank, commercial bank, credit union,
insurance company, or similar institution which is supervised and examined
by a Federal or State authority, or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and
211 of the National Housing Act (any of the foregoing, including the
Representing Party, a "Qualified Originator"); each Mortgaged Property
consists of one or more separate tax parcels of real property upon which
is located one or more commercial structures and otherwise meets the
requirements for eligibility under the Secondary Mortgage Market
Enhancement Act of 1984 for commercial property.
(l) With respect to each Mortgage Loan originated by a Person
that is not a Qualified Originator (a "Non-Qualified Originator"):
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which
standards are the same as the Representing Party's in all
material respects), using application forms and related credit
documents approved by the Qualified Originator;
(B) the Qualified Originator approved each application and related
credit documents before a commitment by the Non-Qualified
Originator was issued, and no such commitment was issued until
the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with
the Qualified Originator;
(D) the closing documents for the Mortgage Loan were prepared on
forms approved by the Qualified Originator, and, pursuant to
the Non-Qualified Originator's ongoing, standing relationship
with the Qualified Originator, and either:
(i) such closing documents reflect the Qualified Originator
as the original mortgagee, and such Mortgage Loan was
actually funded by the Qualified Originator at the
closing thereof;
(ii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(iii) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(li) (1) such Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and (2) the
fair market value of the real property securing such Mortgage Loan was at
least equal to 80% of the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been modified in a manner that
constitutes a deemed exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default with respect thereto
was not reasonably foreseeable, the date of the last such modification) or
(b) at the Original Closing Date; provided that the fair market value of
the real property interest must first be reduced by (A) the amount of any
lien on the real property interest that senior to the Mortgage Loan
(unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on a aggregated basis)
and (B) a proportionate amount of any lien that is in parity with the
Mortgage Loan (unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregate basis).
(lii) With respect to such Mortgage Loan, any prepayment
premium constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
(liii) If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan permits defeasance
(1) no earlier than two years after the Original Closing Date, (2) only
with substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note and (3)
only to facilitate the disposition of the Mortgaged Property and not as a
part of an arrangement to collateralize a REMIC offering with obligations
that are not real estate mortgages. In addition, if such Mortgage contains
such a defeasance provision, it provides (or otherwise contains provisions
pursuant to which the holder can require) that the loan be assumed by a
Single-Purpose Entity designated by the holder of the Mortgage Loan and
that an opinion be provided to the effect that such holder has a first
priority perfected security interest in the defeasance collateral. The
related mortgage loan documents enable the lender to charge the expenses
associated with permitting a defeasance to the Mortgagor (including rating
agencies' fees, accounting fees and attorneys' fees).
(liv) Under the terms of the related Mortgage, any insurance
proceeds or condemnation award with respect to the Mortgaged Property will
be applied (subject to applicable law) either (1) to the repair or
restoration of all or part of the related Mortgaged Property, or (2) to
the payment of the outstanding principal balance of the Mortgage Loan,
together with accrued interest, it being understood that in respect of a
total or substantially total loss or taking, only option (2) may apply.
(lv) If the related Mortgage is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of trust, and
no fees or expenses are or will become payable to the trustee under the
deed of trust, except in connection with the sale or release of the
Mortgaged Property following default or payment of the Mortgage Loan.
(lvi) No claims have been made under any title insurance
policy, the Representing Party has not taken any action which would
materially impair such policy, and to the Representing Party's actual
knowledge, no other person has taken any action which would materially
impair such policy.
(lvii) Each Mortgage Loan originated by the Representing Party
or by one of its approved originators was underwritten consistent in all
material respects with the standards of the Representing Party as then in
effect.
(lviii) The related Mortgage File contains an Appraisal of the
Mortgaged Property, and such Appraisal and the related appraiser satisfy
the requirements of Title XI of the Federal Institutions, Reform, Recovery
and Enforcement Act of 1989 and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated.
(lix) Except to the extent releases are required or expressly
contemplated by the related Mortgage Loan documents or in a writing
contained in the related Mortgage File, the Representing Party has not
satisfied, canceled, rescinded or subordinated the Mortgage in whole or in
part, released the Mortgaged Property in whole or in part from the lien of
the Mortgage, or executed any instrument that would effect any such
satisfaction, cancellation, rescission, subordination or release.
(lx) Each Mortgage contains a "due on sale" clause which
expressly or effectively provides for the acceleration of the payment of
the unpaid principal balance and accrued interest of the related Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
the related Mortgaged Property, or any interest therein, is directly or
indirectly transferred or sold (other than by reason of family and estate
planning transfers and transfers of less than a controlling interest in a
Mortgagor, or a substitution or release of collateral within the
parameters of paragraph (xliv) above).
(lxi) Such Mortgage Loan requires the related Mortgagor to
provide annual operating statements and rent rolls.
(lxii) The Mortgage Loan Seller took no action in selecting
such Mortgage Loans for sale to the Depositor which to the Mortgage Loan
Seller's knowledge would result in delinquencies and losses on the
Mortgage Loans being materially in excess of delinquencies and losses on
the Mortgage Loan Seller's actual portfolio of commercial mortgage loans.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence, notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the parties hereto of a
breach of any of the representations and warranties set forth in subsection (a)
above which materially and adversely affects the interests of the
Certificateholders or any party hereto or a breach of any of the representations
and warranties set forth in subsection (b) above which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to each of the other parties hereto, each Rating Agency and the Directing
Certificateholder.
SECTION 2.06 Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Original
Closing Date, the First Sequel Closing Date and the Second Sequel Closing Date
unless otherwise stated below, that:
(i) The Master Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of Delaware,
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
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
which default, 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.
(iii) The Master Servicer has the full corporate 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 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 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 which 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.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or, to the best of the Master Servicer's knowledge, any of its
officers or employees that is involved in the servicing or administration
of the Mortgage Loans has been refused such coverage or insurance.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07 Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Original
Closing Date, the First Sequel Closing Date and the Second Sequel Closing Date
unless otherwise stated below, that:
(i) The Special Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of
California, 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
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
which default, in the Special Servicer's good faith and reasonable
judgment, is likely to materially and adversely effect either the ability
of the Special Servicer to perform its obligations under this Agreement or
the financial condition of the Special Servicer.
(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 which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Special
Servicer or any of its respective officers or employees that is involved
in the servicing or administration of the Mortgage Loans has been refused
such coverage or insurance.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.08 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) Wells Fargo Bank Minnesota, N.A., both in its capacity as
Trustee and in its capacity as REMIC Administrator (the "Bank"), hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders, as of the Original Closing Date, the First Sequel Closing
Date and the Second Sequel Closing Date unless otherwise stated below, that:
(i) The Bank is a national bank duly organized, validly existing
and in good standing under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank,
and the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the Bank's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Bank to perform its obligations under
this Agreement or the financial condition of the Bank.
(iii) The Bank 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 Bank, enforceable against the Bank 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 Bank 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 Bank's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(b) The representations and warranties of the Bank set forth in
Section 2.08(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder as of the
Original Closing Date and the Trustee has executed, 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 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 of the Class R-I Certificateholders and REMIC II in and to such
distributions, shall be as set forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, as of the Original Closing Date, and concurrently
with the execution and delivery hereof, has assigned 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 REMIC II Regular
Interests, the Class R-II Certificates, the REMIC III Regular Interests, the
Class R-III Certificates, the REMIC IIIU Regular Interests, the Class R-IIIU
Certificates and the REMIC IV Certificates. As of the Original Closing Date, the
Trustee has acknowledged the assignment to it of the REMIC I Regular Interests
and declared that it held and would continue to hold the same in trust for the
exclusive use and benefit of all present and future Holders of the REMIC II
Regular Interests, the Class R-II Certificates, the Class R-III Certificates,
the REMIC R IIIU Regular Interests, the Class R-IIIU Certificates and the REMIC
IV Certificates.
SECTION 2.11 Issuance of the Class R-II Certificates; Creation of
the REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC II, and in exchange therefor, at the direction of the
Depositor, the Original Certificates, have been issued as of the Original
Closing Date and the Trustee has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. As of the First Sequel Closing Date, the Class MG, Class MH,
Class MJ, Class MK and Class MX Uncertificated Interests have been issued to the
Depositor in exchange for the Certificates designated as the Class G, Class H,
Class J, Class K and Class X Certificates under the Original Pooling Agreement.
As of the Second Sequel Closing Date, the Class MA-1, Class MA-2, Class MA-3,
Class MA-4, Class MA-1C, Class MA-2C, Class MB, Class MC and Class MD
Uncertificated Interests have been issued to the Depositor in exchange for the
Certificates designated as the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-1C, Class B, Class C and Class D Certificates under the Original Pooling
Agreement and the First Amended Pooling Agreement. The interests evidenced by
the Class R-II Certificates, together with the REMIC II Regular Interests,
constitute the entire beneficial ownership of REMIC II. The rights of Class R-II
Certificateholders, the Holders of the Unaffected REMIC II Certificates and the
Trustee for the benefit of REMIC III, REMIC IIIU and REMIC IV to receive
distributions from the proceeds of REMIC II shall be as set forth in this
Agreement.
SECTION 2.12 Conveyance of the Class MG, Class MH, Class MJ, Class
MK and Class MX Uncertificated Interests; Acceptance of such Interests by the
Trustee.
The Depositor, as of the First Sequel Closing Date, and concurrently
with the execution and delivery of the First Amended Pooling Agreement, has
assigned without recourse all the right, title and interest of the Depositor in
and to the Class MG, Class MH, Class MJ, Class MK and Class MX Uncertificated
Interests to the Trustee for the benefit of the Holders of the REMIC III Regular
Interests, the Class R-III Certificates, the REMIC IIIU Regular Interests, the
Class R-IIIU Certificates and the REMIC IV Certificates. As of the First Sequel
Closing Date the Trustee acknowledged the assignment to it of the Class MG,
Class MH, Class MJ, Class MK and Class MX Uncertificated Interests and declared
that it held and would continue to hold the same in trust for the exclusive use
and benefit of all present and future Holders of the REMIC III Regular
Interests, the Class R-III Certificates, the REMIC IIIU Regular Interests, the
Class R-IIIU Certificates and the REMIC IV Certificates.
SECTION 2.13 Issuance of the Class R-III Certificates; Creation of
the REMIC III Regular Interests.
Concurrently with the assignment to the Trustee of the Class MG,
Class MH, Class MJ, Class MK and Class MX Uncertificated Interests, and in
exchange therefor, at the direction of the Depositor, the Trustee has, as of the
First Sequel Closing Date, executed, authenticated and delivered to or upon the
order of the Depositor, the Certificates designated as the Class X Certificates
under the First Amended Pooling Agreement and the Unaffected REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. As of the Second Sequel Closing Date, the Class UX
Uncertificated Interest has been issued to the Depositor in exchange for such
class of Certificates designated as the "Class X" Certificate under the First
Amended Pooling Agreement. The interests evidenced by the Class R-III
Certificates, together with the Unaffected REMIC III Certificates and the REMIC
III Uncertificated Regular Interest, constitute the entire beneficial ownership
of REMIC III. The rights of the Class R-III Certificateholders, the Holders of
the Unaffected REMIC III Certificates and the Trustee for the benefit of REMIC
IV to receive distributions from the proceeds of REMIC III shall be as set forth
in this Agreement.
SECTION 2.14 Conveyance of the Class MA-1, Class MA-2, Class MA-3,
Class MA-4, Class MA-1C and Class MA-2C Uncertificated Interests; Acceptance of
such Interests by the Trustee.
The Depositor, as of the Second Sequel Closing Date, and
concurrently with the execution and delivery hereof, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the Class
MA-1, Class MA-2, Class MA-3, Class MA-4, Class MA-1C and Class MA-2C
Uncertificated Interests to the Trustee for the benefit of the Holders of the
REMIC IIIU Regular Interests, the Class R-IIIU Certificates and the REMIC IV
Certificates. The Trustee acknowledges the assignment to it of the Class MA-1,
Class MA-2, Class MA-3, Class MA-4, Class MA-1C and Class MA-2C Uncertificated
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 IIIU
Regular Interests, the Class R-IIIU Certificates and the REMIC IV Certificates.
SECTION 2.15 Issuance of the Class R-IIIU Certificates; Creation of
the REMIC IIIU Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC IIIU, and in exchange therefor, at the direction of the
Depositor, the REMIC IIIU Regular Interests have been issued as of the Second
Sequel Closing Date and the Trustee has executed, authenticated and delivered to
or upon the order of the Depositor, the Class R-IIIU Certificates in authorized
denominations. The interests evidenced by the REMIC IIIU Regular Interests and
the Class R-IIIU Certificates constitute the entire beneficial ownership of
REMIC IIIU. The rights of the REMIC IV Certificates to receive distributions
from the proceeds of REMIC IIIU shall be as set forth in this Agreement.
SECTION 2.16 Conveyance of the Class UA-1A, Class UA-2A, Class
UA-1B, Class UA-2B, Class UA-3B, Class UX, Class MB, Class MC and Class MD
Uncertificated Interests; Acceptance of such Interests by the Trustee.
The Depositor, as of the Second Sequel Closing Date, and
concurrently with the execution and delivery hereof, does hereby assign without
recourse all right, title and interest of the Depositor in and to the Class
UA-1A, Class UA-2A, Class UA-1B, Class UA-2B, Class UA-3B, Class UX, Class MB,
Class MC and Class MD Uncertificated Interests to the Trustee for the benefit of
the Holders of the REMIC IV Certificates. The Trustee acknowledges the
assignment to it of the Class UA-1A, Class UA-2A, Class UA-1B, Class UA-2B,
Class UA-3B, Class UX, Class MB, Class MC and Class MD Uncertificated Interests
and declares that it holds and will hold the same in trust for the exclusive use
and benefit of all present and future holders of the REMIC IV Certificates.
SECTION 2.17 Issuance of the REMIC IV Certificates.
Concurrently with the assignment to the Trustee of assets included
in REMIC IV, and in exchange therefor, at the direction of the Depositor, the
REMIC IV Certificates have been issued as of the Second Sequel Closing Date and
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B,
Class B, Class C, Class D, Class X and Class R-IV Certificates in authorized
denominations. The interests evidenced by the REMIC IV Certificates constitute
the entire beneficial ownership of REMIC IV. The rights of the REMIC IV
Certificates to receive distributions from the proceeds of REMIC IV 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 it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, and in the best
interests and for the benefit of the Certificateholders (as determined in
accordance with the Servicing Standard by the Master Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable judgment) in
accordance with any and all applicable laws and the terms of this Agreement, and
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 as to which no Servicing Transfer Event has occurred and all
Corrected Mortgage Loans, and (ii) the Special Servicer shall service and
administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to
which a Servicing Transfer Event has occurred, and (y) each REO Property;
provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein.
(b) Subject to Section 3.01(a) and the terms and provisions of this
Agreement, the Master Servicer and the Special Servicer each shall have full
power and authority, acting alone or, subject to Section 3.22, through
Sub-Servicers, 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 Sections 3.08 and 3.20, 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 a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer and the Special Servicer, as the case may be, any limited powers
of attorney and other documents 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 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 venturer, partner or
agent. Unless the same Person acts in both capacities, the Master Servicer shall
have no responsibility for the performance by the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service and
administer such Mortgage Loans as a single Mortgage Loan as and when it deems
necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
SECTION 3.02 Collection of Mortgage Loan Payments.
Each of the Master Servicer and the Special Servicer (with respect
to Specially Serviced Mortgage Loans) shall make reasonable efforts to collect
all payments called for 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 (including without limitation, the
Servicing Standard), follow such collection procedures as it would follow were
it the owner of such Mortgage Loans; provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the Master
Servicer or the Special Servicer of the collectability of the Mortgage Loans.
Consistent with the foregoing, the Master Servicer or the Special Servicer each
may waive any Default Charges in connection with any specific delinquent payment
on a Mortgage Loan it is obligated to service hereunder.
Ninety (90) days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Mortgagor of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained. Subject to any terms
of the related Mortgage Loan documents that specify the nature of the account in
which Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Mortgage Loan
(and interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be overages;
(iv) to pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer);
(v) disburse Insurance Proceeds if required to be applied to the repair or
restoration of the related Mortgaged Property; or (vi) to clear and terminate
the Servicing Account at the termination of this Agreement in accordance with
Section 9.01. 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 Special Servicer shall promptly deliver all Escrow Payments
received by it to the Master Servicer for deposit in the applicable Servicing
Account.
(b) The Master Servicer shall (with the cooperation of the Special
Servicer in the case of Specially Serviced Mortgage Loans), (i) maintain
accurate records with respect to each 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. For
purposes of effecting any such payment, the Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan or, if such
Mortgage Loan does not require the related Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder
and subject to the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer
shall, as to all the Mortgage Loans (but at the direction of the Special
Servicer in the case of Specially Serviced Mortgage Loans), except for an
Emergency Advance, subject to Section 3.19(d), advance with respect to the
related Mortgaged Property all such funds as are necessary for the purpose of
effecting the payment of (i) real estate taxes, assessments and other similar
items, that are, or may become, a lien thereon, (ii) ground rents or other 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 particular advance
would not, if made, constitute a Nonrecoverable Servicing Advance (any
determination that such advance would be a Nonrecoverable Servicing Advance
shall be made in accordance with Section 3.11(g)), unless, with respect to the
payment of taxes and assessments, the Master Servicer reasonably anticipates
that such bill will be paid by the Mortgagor by the close of business on or
before the penalty date, but in any event the Master Servicer shall make such
advance (i) within 120 days after such date or (ii) five Business Days (if such
advance relates to a Conduit Loan) or sixty (60) Business Days (if such advance
relates to a Portfolio Loan) after the Master Servicer has received confirmation
that such item has not been paid, whichever is earlier, provided that during
such period the Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to confirm whether such bill has been paid, and provided
further that in any event the Master Servicer shall immediately make such
advance if a tax sale of the mortgaged property is imminent. All such 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 or the Special Servicer in effecting the payment of real estate
taxes, assessments and similar items and, if applicable, ground rents on or in
respect of such Mortgaged Properties shall, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit; provided,
however, that this sentence shall not be construed to limit the rights of the
Master Servicer or the Special Servicer to enforce on behalf of the Trust any
obligations of the related Mortgagor under such Mortgage Loan.
(d) The Master Servicer shall, as to all the 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 to pay for or
otherwise cover, or (if appropriate) to reimburse the related Mortgagor in
connection with, the specific items for which such Reserve Funds were escrowed,
all 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. Subject to the terms of the related Mortgage Note and
Mortgage, all Reserve Accounts shall be Eligible Accounts. The Special Servicer
shall promptly deliver all Reserve Funds received by it to the Master Servicer
for deposit in the applicable Reserve Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Original Closing Date and the date as of
which such plan is required to be established or completed. To the extent any
repairs, capital improvements, actions or remediations are required to have been
taken or completed pursuant to the terms of the Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation of such actions
and remediations within a reasonable time after the later of the Original
Closing Date and the date as of which such action or remediations are required
by the related mortgage loan documents to be or to have been taken or completed.
To the extent a Mortgagor shall fail to promptly respond to any inquiry
described in this Section 3.03(e), the Master Servicer shall determine whether
the related Mortgagor has failed to perform its obligations under the related
Mortgage Loan and report any such failure to the Special Servicer within a
reasonable time after the date as of which such actions or remediations are
required to be or to have been taken or completed.
SECTION 3.04 Certificate Account, the Distribution Account, the
REMIC II Distribution Account, the REMIC III Distribution Account, the REMIC
IIIU Distribution Account and the REMIC IV 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 two Business Days of receipt
(in the case of payments by Mortgagors or other collections on or in respect of
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by or on behalf of it subsequent to the
Original Cut-off Date (other than in respect of principal, interest and any
other amounts due and payable on the Mortgage Loans on or before the Original
Cut-off Date, which payments shall be delivered promptly to the Mortgage Loan
Seller or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest at the respective
Mortgage Rates on the Mortgage Loans and all Prepayment Premiums received
in respect of the Mortgage Loans;
(iii) (A) with respect to any Portfolio Mortgage Loan and any
Conduit Mortgage Loan initially primary serviced by Bank of America, N.A.
(as indicated on the initial Mortgage Loan Schedule), the portion of any
Default Charges required for the reimbursement of related Advance Interest
under Section 3.05(a)(viii), and (B) with respect to any other Mortgage
Loan, to the extent allocable to the period that such other Mortgage Loan
is a Specially Serviced Mortgage Loan, all payments on account of Default
Charges on such Specially Serviced Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of all
related Liquidation Expenses paid therefrom) received in respect of any
Mortgage Loan (other than Liquidation Proceeds that are received in
connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage Loans
and any REO Properties in the Trust Fund and that are required to be
deposited in the Distribution Account pursuant to Section 9.01);
(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 or master single
interest policy;
(vii) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that
are allocable to cover items in respect of which Servicing Advances have
been made; and
(ix) any proceeds from the repurchase of Mortgage Loans by the
Mortgage Loan Seller under Section 2.03 of this Agreement.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, (A) actual
payments from Mortgagors in the nature of Escrow Payments, and amounts that the
Master Servicer and the Special Servicer are entitled to retain as additional
servicing compensation pursuant to Section 3.11(b) and Section 3.11(d),
respectively, need not be deposited by the Master Servicer in the Certificate
Account and (B) with respect to any amount representing a sub-servicing fee
(including, without limitation, a Primary Servicing Fee, if applicable) that
otherwise would be required to be deposited by the Master Servicer in the
Certificate Account and that, once so deposited, would have been permitted to be
withdrawn immediately from the Certificate Account pursuant to Section 3.05 as
part of the payment of the Master Servicing Fee, such amount shall be deemed to
have been deposited to and withdrawn from the Certificate Account for such
purpose to the extent that such sum has been retained by the Sub-Servicer
pursuant to the related Sub-Servicing Agreement. 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 special servicing
compensation in accordance with Section 3.11(d), assumption fees, modification
fees, Net Default Charges, charges for beneficiary statements or demands,
charges for checks returned for insufficient funds and similar fees (excluding
Prepayment Premiums) received by the Master Servicer with respect to Specially
Serviced Mortgage Loans. 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 serviced and the other accounts of the
Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(vi) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. 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 two 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 Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of the REMIC I Regular Interests the REMIC II
Uncertificated Regular Interests, the REMIC III Uncertificated Regular Interest
and the REMIC IIIU Regular Interests and the Certificateholders. The
Distribution Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall deliver to the Trustee, for deposit
in the Distribution Account, an aggregate amount of immediately available funds
equal to the Master Servicer Remittance Amount for such Master Servicer
Remittance Date. If, at 1:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Trustee has not received the Master Servicer Remittance
Amount, the Trustee shall provide notice to the Master Servicer in the same
manner as required by Section 4.03(a) hereof with respect to P&I Advances.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee 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 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited in the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or advanced by the Trustee that are required by the
terms of this Agreement to be deposited therein.
(c) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Trust as holder of the REMIC II
Uncertificated Regular Interests, the REMIC III Uncertificated Regular Interest,
the REMIC IIIU Regular Interests and the Certificateholders (other than the
Class R-I Certificateholders). The REMIC II Distribution Account shall be
established and maintained as an Eligible Account. With respect to each
Distribution Date, the Trustee shall be deemed to (i) withdraw from the
Distribution Account and shall be deemed to deposit in the REMIC II Distribution
Account on or before such date the amount of the Available Distribution Amount
and Prepayment Premiums to be distributed in respect of the REMIC I Regular
Interests pursuant to Section 4.01(a)(ii) and Section 4.01(c)(v) hereof on such
date and (ii) to withdraw from the REMIC II Distribution Account and distribute
to the Holders of the Unaffected REMIC II Certificates and the Class R-II
Certificate on such Distribution Date the portion of the Available Distribution
Amount and the Prepayment Premiums to be distributed in respect thereof pursuant
to Section 4.01(a)(iv), Section 4.01(b) and Section 4.01(c)(i) on such date.
(d) The Trustee shall establish and maintain the REMIC III
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Trust as holder of REMIC III
Uncertificated Regular Interest, the REMIC IIIU Regular Interests and the
Certificateholders (other than the holders of the Unaffected REMIC II
Certificates and the Class R-I and Class R-II Certificateholders). The REMIC III
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, the Trustee shall be deemed to withdraw
from the REMIC II Distribution Account and shall be deemed to deposit in the
REMIC III Distribution Account on such date the portion of the Available
Distribution Amount to be distributed in respect of the Class MG, Class MH,
Class MJ and Class MK, and Class MX Uncertificated Interests, respectively,
pursuant to Section 4.01(a)(v) and Section 4.01(c)(v) hereof on such date.
(e) The Trustee shall establish and maintain the REMIC IIIU
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Trust as holder of the REMIC
IIIU Regular Interests and the Certificateholders (other than the holders of the
Unaffected Certificates and the Class R-I, Class R-II and Class R-III
Certificateholders). The REMIC IIIU Distribution Account shall be established
and maintained as an Eligible Account. With respect to each Distribution Date,
the Trustee shall be deemed (i) to withdraw from the REMIC II Distribution
Account and shall be deemed to deposit in the REMIC IIIU Distribution Account on
such date the portion of the Available Distribution Amount and the Prepayment
Premiums to be distributed in respect of the Class MA-1, Class MA-2, Class MA-3,
Class MA-4, Class MA-1C and Class MA-2C Uncertificated Interests, respectively,
pursuant to Section 4.01(a)(ii) and Section 4.01(c)(v) hereof on such date and
(ii) to withdraw from the REMIC IIIU Distribution Account and distribute to the
holders of the Class R-IIIU Certificates on such Distribution Date the portion
of the Available Distribution Amount to be distributed in respect thereof
pursuant to Section 4.01(a)(vi) on such date.
(f) The Trustee shall establish and maintain the REMIC IV
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Holders of the REMIC IV
Certificates. The REMIC IV Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall be deemed (i) to withdraw from the REMIC IIIU Distribution Account
and shall be deemed to deposit in the REMIC IV Distribution Account on such date
the portion of the Available Distribution Amount and the Prepayment Premiums to
be distributed in respect of the Class UA-1A, Class UA-2A, Class UA-1B, Class
UA-2B, and Class UA-3B Uncertificated Interests, respectively, pursuant to
Section 4.01(a)(ii) and Section 4.01(c)(v) hereof on such date, and (ii) to
withdraw from the REMIC III Distribution Account and shall be deemed to deposit
in the REMIC IV Distribution Account on such date the portion of the Available
Distribution Amount to be distributed in respect of the Class UX Uncertificated
Interest pursuant to Section 4.01(a)(ii) hereof on such date and (iii) to
withdraw from the REMIC II Distribution Account and shall be deemed to deposit
in the REMIC IV Distribution Account on such date the portion of the Available
Distribution Amount and the Prepayment Premiums to be distributed in respect of
the Class MB, Class MC and Class MD Uncertificated Interests pursuant to Section
4.01(a)(ii) and Section 4.01(c)(v) hereof on such date.
(g) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Original Closing Date and of the new location
of the Certificate Account prior to any change thereof. The Distribution
Account, the REMIC II Distribution Account, the REMIC III Distribution Account,
the REMIC IIIU Distribution Account and the REMIC IV Distribution Account shall
be established at the Corporate Trust Office of the Trustee as of (i) the
Original Closing Date, in the case of the Distribution Account and the REMIC II
Distribution Account, (ii) the First Sequel Closing Date in the case of the
REMIC III Distribution Account and (iii) the Second Sequel Closing Date, the
REMIC IIIU Distribution Account and the REMIC IV Distribution Account. The
Trustee shall give notice to the other parties hereto of the new location of
such accounts prior to any change thereof.
SECTION 3.05 Permitted Withdrawals From the Certificate 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 Trustee for deposit in the Distribution
Account the Master Servicer Remittance Amount for, and, to the extent
permitted or required by Section 4.03(a), any P&I Advances to be made on,
each Master Servicer Remittance Date;
(ii) to reimburse the Trustee or the Master Servicer, as
applicable, in that order, for unreimbursed P&I Advances made thereby in
respect of any Mortgage Loan or REO Loan, the Trustee's and the Master
Servicer's respective rights to reimbursement pursuant to this clause (ii)
with respect to any P&I Advance being payable from, and limited to,
amounts that represent Late Collections of interest and principal (net of
related Master Servicing Fees (but not the Special Servicer's Standby
Fee), Workout Fees and/or Liquidation Fees payable therefrom) received in
respect of the particular Mortgage Loan or REO Loan as to which such P&I
Advance was made;
(iii) to pay to the Master Servicer 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 payable from, and 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, and to pay
the Standby Fee to the Special Servicer out of the Master Servicing Fee
with respect to such Mortgage Loan (or paid as an Advance if collections
to be applied to such Master Servicing Fee are insufficient);
(iv) to pay to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, for any unreimbursed Servicing
Advances made thereby with respect to any Mortgage Loan or REO Property,
the Trustee's, the Special Servicer's and the Master Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance being payable from, and limited to, (A) payments made by
the related Mortgagor that are allocable to cover the item in respect of
which such Servicing Advance was made, and (B) Liquidation Proceeds (net
of Liquidation Fees payable therefrom), 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, the Special Servicer or the
Master Servicer, as applicable, in that order, out of general collections
on the Mortgage Loans and any REO Properties, for any unreimbursed
Advances and Advance Interest at the Reimbursement Rate (to the extent
such Advance Interest will not be reimbursable from Default Charges to the
extent contemplated by the immediately following clause (viii)) made
thereby with respect to any Mortgage Loan, REO Loan or REO Property that
have been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, any Advance Interest due and owing
thereto, the Trustee's, the Special Servicer's and the Master Servicer's
respective rights to payment pursuant to this clause (viii) being payable
from, and limited to, Default Charges collected in respect of the Mortgage
Loan or REO Loan as to which the related Advances were made (but only as
to any Portfolio Mortgage Loans or any Conduit Mortgage Loans initially
primary serviced by Bank of America, N.A. (as indicated on the initial
Mortgage Loan Schedule), and any other Mortgage Loan to the extent
allocable to the period when such other Mortgage Loan was a Specially
Serviced Mortgage Loan or an REO Loan);
(ix) at or following such time as the Master Servicer reimburses
itself, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or
Section 3.03, and insofar as payment has not already been made pursuant to
clause (viii) above, to pay the Trustee, the Special Servicer or the
Master Servicer, as the case may be, and in that order, out of general
collections on the Mortgage Loans and any REO Properties, any related
Advance Interest accrued and payable on such Advance;
(x) to pay the Master Servicer, as additional servicing
compensation in accordance with Sections 3.06(b) and 3.11(b), any Net
Investment Earnings in respect of amounts held in the Certificate Account
for any Collection Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment Interest
Excesses to the extent not offset by Prepayment Interest Shortfalls, and,
to the extent not either (A) related to a Portfolio Mortgage Loan or a
Conduit Mortgage Loan initially primary serviced by Bank of America, N.A.
(as indicated on the initial Mortgage Loan Schedule), and required for the
reimbursement of Advance Interest under Section 3.05(a)(viii), or (B)
related to any Mortgage Loan and allocable to the period that such
Mortgage Loan is a Specially Serviced Mortgage Loan or REO Loan, any
Default Charges collected on the Mortgage Loans, and to pay the Special
Servicer, as additional servicing compensation in accordance with Section
3.11(d), any Net Default Charges collected on any Mortgage Loan to the
extent allocable to the period that such Mortgage Loan is a Specially
Serviced Mortgage Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage
Loans and any REO Properties, the Master Servicer, the Special Servicer,
the REMIC Administrator, the Depositor, or any of their respective
directors, officers, employees and agents any amounts reimbursable to any
such Person pursuant to Section 6.03, or to pay directly to any third
party any amount which if paid by any such Person would be reimbursable
thereto pursuant to Section 6.03;
(xiii) to pay, out of general collections on the Mortgage Loans
and any REO Properties, for (A) the reasonable costs of the advice of
counsel contemplated by Section 3.17(a), (B) the reasonable costs of the
Opinions of Counsel contemplated by Sections 3.09(b)(ii) and 3.16(a), (C)
the reasonable costs of Appraisals obtained pursuant to Section 3.11(g) or
4.03(c), (D) the reasonable costs 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 Majority
Certificateholder of the Controlling Class, the Mortgage Loan Seller 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 pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b) and Section
8.13;
(xvi) to pay any costs and expenses contemplated in Section
3.11(h), the last sentence of Section 7.02 and the last sentence of
Section 8.08(a);
(xvii) to deposit into the Interest Reserve Account the Withheld
Amounts required to be deposited pursuant to Section 4.05; and,
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited in the Certificate
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xviii)
above, then the corresponding withdrawals from the Certificate Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
provided that where, as in clauses (ii), (vi), (vii), (viii) and (ix), an order
of priority is set forth to govern the application of funds withdrawn from the
Certificate Account pursuant to such clauses, payments, reimbursements or
remittances pursuant to any such clause shall be made in such order of priority
to the extent of available funds; and (B) if the payment, reimbursement or
remittance can be made from any funds on deposit in the Certificate Account,
then (following any withdrawals made from the Certificate Account in accordance
with the immediately preceding clause (A) above) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds; provided that where, as in clauses (ii), (vi), (vii), (viii)
and (ix), an order of priority is set forth to govern the application of funds
withdrawn from the Certificate Account pursuant to such clauses, payments,
reimbursements or remittances pursuant to any such clause shall be made in such
order of priority to the extent of available funds.
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) through (xviii) above.
The Master Servicer shall pay to the Special Servicer from the
Certificate Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which the Special Servicer 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.
(b) The Trustee shall be deemed to make withdrawals from the REMIC I
Distribution Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) as contemplated by Section 3.04(c), to deposit into the REMIC
II Distribution Account on or before the related Distribution Date the
Available Distribution Amount and Prepayment Premiums to be distributed in
respect of the REMIC I Regular Interests;
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant
to Section 8.05(a), and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 11.01(g), to pay for the
reasonable costs of the Opinions of Counsel sought by the Trustee 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 for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV or on the
assets or transactions of any such REMIC, together with all incidental
costs and expenses, and any and all reasonable expenses relating to tax
audits, if and to the extent that either (1) none of the Trustee, the
Master Servicer, the Special Servicer or the REMIC Administrator is liable
therefor pursuant to Section 10.01(d) and/or Section 10.01(h) or (2) any
such Person that may be so liable has failed to timely make the required
payment, and (B) reimburse the REMIC Administrator for reasonable expenses
incurred by and reimbursable to it by the Trust pursuant to Section
10.01(d) and/or Section 10.01(g); and
(vii) to make distributions to the Holders of the Class R-I
Certificates as contemplated by Section 4.01(a)(iii) or Section 9.01, as
applicable; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee (i) shall be deemed to make withdrawals from the
REMIC II Distribution Account for any of the following purposes: (A) to deposit
into the REMIC III Distribution Account on the related Distribution Date the
portions of the Available Distribution Amount to be distributed with respect to
the Class MG, Class MH, Class MJ, Class MK and Class MX Uncertificated Interests
on each Distribution Date pursuant to Section 4.01(a)(ii) or Section 9.01, as
applicable, (B) to deposit into the REMIC IIIU Distribution Account on the
related Distribution Date the portions of the Available Distribution Amount and
Prepayment Premiums to be distributed with respect to the Class MA-1, Class
MA-2, Class MA-3, Class MA-4, Class MA-1C and Class MA-2C Uncertificated
Interests on each Distribution Date pursuant to Sections 4.01(a)(i) and
4.01(c)(v) or Section 9.01, as applicable, and (C) to deposit into the REMIC IV
Distribution Account on the related Distribution Date the portions of the
Available Distribution Amount and Prepayment Premiums to be distributed with
respect to the Class MB, Class MC and Class MD Uncertificated Interests on each
Distribution Date pursuant to Sections 4.01(a)(i) and 4.01(c)(v) or Section
9.01, as applicable; and (ii) shall make withdrawals from the REMIC II
Distribution Account for any of the following purposes: (A) to make
distributions to Holders of the Unaffected REMIC II Certificates pursuant to
Section 4.01(b) and Section 4.01(c)(i) or Section 9.01, as applicable, (B) to
make distributions to Holders of the Class R-II Certificates pursuant to Section
4.01(a)(iv) or Section 9.01, as applicable, and (C) to clear and terminate the
REMIC II Distribution Account at the termination of this Agreement pursuant to
Section 9.01.
(d) The Trustee (i) shall be deemed to make withdrawals from the
REMIC III Distribution Account for the following purposes: to deposit into the
REMIC IV Distribution Account on the related Distribution Date the portion of
the Available Distribution Amount to be distributed with respect to the Class UX
Uncertificated Interest on each Distribution Date pursuant to Section 4.01(a)(i)
or Section 9.01, as applicable; and (ii) shall make withdrawals from the REMIC
III Distribution Account for any of the following purposes: (A) to make
distributions to the Holders of the Unaffected REMIC III Certificates pursuant
to Section 4.01(b) or Section 9.01, as applicable; (B) to make distributions to
the Holders of the Class R-III Certificates pursuant to Section 4.01(a)(v) or
Section 9.01, as applicable; and (C) to clear and terminate the REMIC III
Distribution Account at the termination of this Agreement pursuant to Section
9.01.
(e) The Trustee (i) shall be deemed to make withdrawals from the
REMIC IIIU Distribution Account for any of the following purposes: to deposit
into the REMIC IV Distribution Account the portion of the Available Distribution
Amount and Prepayment Premiums to be distributed in respect of the REMIC IIIU
Regular Interests on each Distribution Date pursuant to Section 4.01(a)(ii) and
Section 4.01(c)(v) or Section 9.01, as applicable; and (ii) shall make
withdrawals from the REMIC IIIU Distribution Account for any of the following
purposes: (A) to make distributions to Holders of the Class R-IIIU Certificates
pursuant to Section 4.01(a)(vi) or Section 9.01, as applicable, and (B) to clear
and terminate the REMIC IIIU Distribution Account at the termination of this
Agreement pursuant to Section 9.01.
(f) The Trustee (i) shall be deemed to make withdrawals from the
REMIC IV Distribution Account for the following purposes: (A) to make
distributions on the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B,
Class B, Class C, Class D and Class X Certificates on each Distribution Date
pursuant to Sections 4.01(b), 4.01(c)(i), 4.01(c)(ii), 4.01(c)(ii) or Section
9.01, as applicable, and (B) to make distributions to Holders of the Class R-IV
Certificates pursuant to Section 4.01(b) or Section 9.01, as applicable; and (C)
to clear and terminate the REMIC IV Distribution Account at the termination of
this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account and the Interest Reserve Account, and the
Special Servicer may direct any depository institution maintaining the REO
Account, to invest, or if it is such depository institution, may itself invest,
the funds held therein (each such account, for purposes of this Section 3.06, an
"Investment Account") only in one or more Permitted Investments bearing interest
or sold at a discount, and maturing, unless payable on demand, no later than the
Business Day immediately preceding the next succeeding date on which such funds
are required to be withdrawn from such account pursuant to this Agreement. All
such Permitted Investments shall be held to maturity, unless payable on demand,
in which case such investments may be sold at any time. Any investment of funds
in an Investment Account shall be made in the name of the Trustee for the
benefit of the Certificateholders (in its capacity as such). The Master Servicer
(with respect to Permitted Investments of amounts in the Certificate Account and
the Interest Reserve Account) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), on behalf of the Trustee
for the benefit of the Certificateholders, shall (and the Trustee hereby
designates the Master Servicer or the Special Servicer, as applicable, as the
Person that shall) (i) be the "entitlement holder" of any Permitted Investment
that is a "security entitlement" and (ii) maintain "control" of any Permitted
Investment that is either a "certificated security" or an "uncertificated
security". For purposes of this Section 3.06(a), the terms "entitlement holder",
"security entitlement", "control", "certificated security" and "uncertificated
security" shall have the meanings given such terms in Revised Article 8 (1994
Revision) of the UCC, and "control" of any Permitted Investment by the Master
Servicer or the Special Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC. 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 and the Interest
Reserve Account) or the Special Servicer (in the case of the REO Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) 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 the Certificate Account, interest and investment income realized on
funds deposited therein, to the extent of the Net Investment Earnings, if any,
for such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). 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 such Investment Account 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). Whether
or not the Master Servicer directs the investment of funds in the Interest
Reserve Account, interest and investment income realized on funds deposited
therein, to the extent of Net Investment Earnings, if any, for such Investment
Account for each Collection Period, shall be for the sole and exclusive benefit
of the Master Servicer and shall be subject to withdrawal by the Master
Servicer. 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
Certificate Account and the Interest Reserve Account), 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. The Trustee shall have no liability whatsoever
with respect to any such losses, except to the extent that it is the obligor on
any such Permitted Investment.
(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 Master Servicer or the Special Servicer, as applicable, has
not taken such action, 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, without limitation, 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 and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) 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) Each of the Master Servicer and the Special Servicer shall, as
to those Mortgage Loans it is obligated to service hereunder, use its best
efforts in accordance with the Servicing Standard to cause the related Mortgagor
to maintain (and, if the related Mortgagor is required by the terms of the
related Mortgage Loan and does not so maintain, the Master Servicer (even in the
case of Specially Serviced Mortgage Loans) shall itself maintain (subject to the
provisions of this Agreement regarding Nonrecoverable Advances, and further
subject to Section 3.11(h) hereof)), to the extent the Trustee, as mortgagee on
behalf of the Certificateholders, has an insurable interest and to the extent
available at commercially reasonable rates) all insurance coverage as is
required under the related Mortgage Loan (subject to applicable law), in each
case with an insurer that possesses the Required Claims Paying Rating at the
time such policy is issued (to the extent consistent with the related Mortgage
Loan documents); provided that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate,
shall impose such insurance requirements as are consistent with the Servicing
Standard. The Special Servicer shall cause to be maintained for each REO
Property, in each case with an insurer that possesses the Required Claims-Paying
Ratings at the time such policy is purchased, no less insurance coverage than
was previously required of the related Mortgagor under the related Mortgage and,
if the related Mortgage did not so require, hazard insurance, public liability
insurance and business interruption or rent loss insurance in such amounts as
are consistent with the Servicing Standard, and the Special Servicer shall be
reimbursed for the premium costs thereof as a Servicing Advance pursuant to and
to the extent permitted under Section 3.05(a). All such insurance policies shall
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
(in the case of insurance maintained in respect of the Mortgaged Properties) or
the Special Servicer (in the case of insurance maintained in respect of REO
Properties) on behalf of the Trustee, shall be issued by an insurer authorized
under applicable law to issue such insurance, and, unless prohibited by the
related Mortgage, may contain a deductible clause (not in excess of a customary
amount). Any amounts collected by the Master Servicer or 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 in accordance with 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, as applicable, in maintaining any such
insurance 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 Mortgage Loan so permit.
(b)
(i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket policy insuring against hazard losses on any or all
of the Mortgaged Properties (in the case of the Master Servicer) or REO
Properties (in the case of the Special Servicer), then, to the extent such
policy (A) is obtained from a Qualified Insurer that possesses the
Required Claims-Paying Ratings, and (B) 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
Mortgaged Properties or REO Properties, as applicable, so covered, and the
premium costs thereof shall be, if and to the extent they are specifically
attributable either to a specific Mortgaged Property during any period
that the related Mortgagor has failed to maintain the hazard insurance
required under the related Mortgage Loan in respect of such Mortgaged
Property or to a specific REO Property, a Servicing Advance reimbursable
pursuant to and to the extent permitted under Section 3.05(a); provided
that, to the extent that such premium costs are attributable to properties
other than Mortgaged Properties and/or REO Properties or are attributable
to Mortgaged Properties as to which the hazard insurance required under
the related Mortgage Loan is being maintained, they shall be borne by the
Master Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a 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, as
applicable, a hazard insurance policy complying with the requirements of
Section 3.07(a), and there shall have been one or more losses which would
have been covered by such property specific policy (taking into account
any deductible clause that would have been permitted therein), promptly
deposit into the Certificate Account from its own funds (without right of
reimbursement) the amount of such losses up to the difference between the
amount of the deductible clause in such blanket policy and the amount of
any deductible clause that would have been permitted under such property
specific policy. The Master Servicer and the Special Servicer each agree
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy maintained by it
in a timely fashion in accordance with the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property or
the Special Servicer shall cause any REO Property to be covered by a
master single interest insurance policy naming the Master Servicer or the
Special Servicer, as applicable, on behalf of the Trustee as the loss
payee, then to the extent such policy (A) is obtained from a Qualified
Insurer that possesses the Required Claims-Paying Ratings and (B) provides
protection equivalent to the individual policies otherwise required, the
Master Servicer or the Special Servicer, as applicable, shall conclusively
be deemed to have satisfied its obligation to cause such insurance to be
maintained on such Mortgaged Property (in the case of the Master Servicer)
or REO Property (in the case of the Special Servicer). If the Master
Servicer shall cause any Mortgaged Property as to which the related
Mortgagor has failed to maintain the required insurance coverage, or the
Special Servicer shall cause any REO Property, to be covered by such
master single interest insurance policy, then the incremental costs of
such insurance applicable to such Mortgaged Property or REO Property
(i.e., other than any minimum or standby premium payable for such policy
whether or not any Mortgaged Property or REO Property is covered thereby)
paid by the Master Servicer or the Special Servicer, as applicable, shall
constitute a Servicing Advance. The Master Servicer shall, consistent with
the Servicing Standard and the terms of the related Mortgage Loan
documents, pursue the related Mortgagor for the amount of such incremental
costs. All other costs associated with any such master single interest
insurance policy (including, without limitation, any minimum or standby
premium payable for such policy) shall be borne by the Master Servicer or
Special Servicer, as the case may be, without right of reimbursement. Such
master single interest insurance policy may contain a deductible clause
(not in excess of a customary amount), in which case the Master Servicer
or the Special Servicer, as applicable, shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO
Property, as the case may be, a policy otherwise complying with the
provisions of Section 3.07(a), and there shall have been one or more
losses which would have been covered by such property specific policy had
it been maintained, promptly deposit into the Certificate Account from its
own funds (without right of reimbursement) the amount not otherwise
payable under the master single interest policy because of such deductible
clause, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence
of any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement keep in force with recognized
insurers that possess the Required Claims-Paying Ratings a fidelity bond in such
form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac
seller-servicer of multifamily mortgage loans. 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 that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special Servicer
shall at all times during the term of this Agreement keep in force with
recognized insurers that possess the Required Claims-Paying Ratings a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligation to service the
Mortgage Loans for which it is responsible hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Fannie Mae
or Freddie Mac seller-servicer of multifamily mortgage loans. Any such errors
and omissions policy, if required, shall provide that it may not be canceled
without 30 days' prior written notice to the Trustee.
(d) All insurance coverage required to be maintained under this
Section 3.07 shall be obtained from Qualified Insurers.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property or of a controlling
interest in the related Mortgagor; or
(ii) provides that such Mortgage Loan may not be assumed without
the consent of the mortgagee in connection with any such sale or other
transfer, then, for so long as such Mortgage Loan is included in the Trust
Fund, each of the Master Servicer and the Special Servicer shall, on
behalf of the Trustee as the mortgagee of record, as to those Mortgage
Loans it is obligated to service hereunder, exercise (or waive its right
to exercise) any right it may have with respect to such Mortgage Loan (x)
to accelerate the payments thereon, or (y) to withhold its consent to any
such sale or other transfer, in a manner consistent with the Servicing
Standard, but subject to Section 3.20(a)(iii); provided that,
notwithstanding anything to the contrary contained herein, neither the
Master Servicer nor the Special Servicer shall waive any other right it
has, or grant any other consent it is otherwise entitled to withhold,
under any related "due-on-sale" clause other than in connection with
transfers and assumptions under the Mortgage Loans in which the
obligations of the original recourse parties (including any guarantors) of
the Mortgage Loans are not changed, such as transfers to inter vivos
trusts for tax or estate planning purposes unless it first (1) shall have
provided, at least five Business Days prior to the granting of such waiver
or consent, to the Directing Certificateholder and, in the case of the
Master Servicer, to the Special Servicer, written notice of the matter,
and a written recommendation and rationale therefor, (2) in the case of
the Master Servicer, shall have obtained the consent of the Special
Servicer, and (3) if the then-outstanding principal balance of the subject
Mortgage Loan (together with the then-outstanding aggregate principal
balance of all other Mortgage Loans to the same Mortgagor or to other
Mortgagors that are, to the Master Servicer's or Special Servicer's, as
applicable, actual knowledge, Affiliates of the Mortgagor under the
subject Mortgage Loan) is $20,000,000 or more, or 2% or more of the then
current principal balance of the Mortgage Pool shall have obtained written
confirmation from each Rating Agency that such action shall not result in
a qualification (if applicable), downgrade or withdrawal of the rating
then assigned by such Rating Agency to any Class of Certificates; and
provided, further, that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-sale" clause governing the
transfer of any Mortgaged Property which secures, or controlling interests
in any Mortgagor under, a Group of Cross-Collateralized Mortgage Loans
unless all of the Mortgaged Properties securing, or a controlling interest
in all the Mortgagors (if more than one) under, such Group of
Cross-Collateralized Mortgage Loans are transferred simultaneously to the
same transferee. In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding sentence, the
Mortgage Loan documents or applicable law, to permit the transfer of any
Mortgaged Property, the Master Servicer or the Special Servicer, as the
case may be, may, if consistent with the Servicing Standard, enter into a
substitution of liability agreement, pursuant to which the original
Mortgagor and any original guarantors are released from liability, and the
transferee and any new guarantors are substituted therefor and become
liable under the Mortgage Note and any related guaranties and, in
connection therewith, may require from the related Mortgagor a reasonable
and customary fee for the additional services performed by it, together
with reimbursement for any related costs and expenses incurred by it. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, but subject to
Section 3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause unless it first shall
have provided, at least five Business Days prior to the granting of such waiver
or consent, to the Directing Certificateholder and, in the case of the Master
Servicer, to the Special Servicer written notice of the matter and a written
explanation of the surrounding circumstances, and (2) upon request made within
such five Business Day period, shall have discussed the matter with the
Directing Certificateholder and/or, in the case of the Master Servicer, with the
Special Servicer; and provided, further, that, notwithstanding anything to the
contrary contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause with respect to any
Mortgage Loan until it has received written confirmation from each Rating Agency
that such action would not result in the downgrade, qualification (if
applicable) or withdrawal of the rating then assigned by such Rating Agency to
any Class of Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) With respect to a request to the Special Servicer from the
Master Servicer for approval for the assumption or waiver of a
due-on-encumbrance clause of a Mortgage Loan that would not require Rating
Agency review, the Special Servicer shall notify the Master Servicer of its
decision within five (5) Business Days of receiving notice (and all supporting
documentation reasonably required by the Special Servicer for its analysis) from
the Master Servicer of the Master Servicer's decision to approve the assumption.
(e)
(i) The parties to this Agreement mutually acknowledge and agree
that the Mortgage Loan Seller is the lender with respect to both first
lien Mortgage Loans (the "Senior Mortgage Loans") and subordinate lien
Mortgage Loans (the "Junior Mortgage Loans"), both of which are secured by
deeds of trust on the same Mortgaged Properties, for those Mortgage Loans
listed on Schedule II and made to the Mortgagors listed on such Schedule
II, which Schedule II is attached to this Agreement. As used in this
Section 3.08(e), the term "Senior Mortgage Loan Seller" shall mean the
Mortgage Loan Seller in its capacity as lender of the Senior Mortgage
Loans, together with any and all of its successors and assigns, including
without limitation the Trust created hereunder and any servicers of the
Senior Mortgage Loans, and the term "Junior Mortgage Loan Seller" shall
mean the Mortgage Loan Seller in its capacity as lender of the Junior
Mortgage Loans, together with any and all of its successors and assigns,
including without limitation any servicers of the Junior Mortgage Loans.
(ii) The Senior Mortgage Loans shall be transferred to the Trust
pursuant to this Agreement; however, the Junior Mortgage Loans shall not
be so transferred. The Junior Mortgage Loan Seller hereby agrees that any
and all claims, now or hereafter existing, of the Junior Mortgage Loan
Seller with respect to the Junior Mortgage Loans are, and shall be at all
times, subject and subordinate to any and all claims, now or hereafter
existing, which Senior Mortgage Loan Seller may have against the
Mortgagors with respect to the Senior Mortgage Loans (including any claims
by the Senior Mortgage Loan Seller for interest accruing after any
assignments for the benefit of creditors by the Mortgagors or the
institution by or against the Mortgagors of any proceedings under the
Bankruptcy Code, or any claims by the Senior Mortgage Loan Seller for any
such interest which would have accrued in the absence of such assignments
or the institution of such proceedings).
(iii) The Junior Mortgage Loan Seller agrees not to sue upon, or
to collect, or to receive payment of the principal or interest of any
claim or claims now or hereafter existing which the Junior Mortgage Loan
Seller may hold against the Mortgagors arising out of the Junior Mortgage
Loans and not to sell, assign, transfer, pledge, hypothecate, or encumber
such claim or claims except subject expressly to this Section 3.08(e), and
not to enforce or apply any security now or hereafter existing therefor,
nor to file or join in any petitions to commence any proceedings under the
Bankruptcy Code, so long as any claims of the Senior Mortgage Loan Seller
against the Mortgagors shall exist in respect of the Senior Mortgage
Loans.
(iv) In case of any assignments for the benefit of creditors by
the Mortgagors, or in case any proceedings under the Bankruptcy Code are
instituted by or against the Mortgagors, or in case of the appointment of
any receivers for the Mortgagors' businesses or assets, or in case of any
dissolution or winding up of the affairs of the Mortgagors: (a) the
Mortgagors and any assignees, trustees in bankruptcy, receivers, debtors
in possession or other person or persons in charge are hereby directed to
pay to Senior Mortgage Loan Seller the full amount of Senior Mortgage Loan
Seller's claims against the Mortgagors arising out of the Senior Mortgage
Loans (including interest to the date of payment) before making any
payments of principal or interest to the Junior Mortgage Loan Seller on
the Junior Mortgage Loans, and insofar as may be necessary for that
purpose, the Junior Mortgage Loan Seller hereby assigns and transfers to
the Senior Mortgage Loan Seller all security for the Junior Mortgage Loans
or proceeds thereof, and all rights to any payments related thereto, and
(b) the Junior Mortgage Loan Seller hereby irrevocably constitutes and
appoints the Senior Mortgage Loan Seller its true and lawful attorney to
act in its name and stead: (i) to file the appropriate claim or claims on
behalf of the Junior Mortgage Loan Seller if the Junior Mortgage Loan
Seller does not do so prior to thirty (30) days before the expiration of
the time to file claims in such proceedings and if the Senior Mortgage
Loan Seller elects, at its sole discretion, to file such claim or claims
and (ii) to accept or reject any plans or reorganization or arrangements
on behalf of the Junior Mortgage Loan Seller, and to otherwise vote the
Junior Mortgage Loan Seller's claims in respect of any indebtedness now or
hereafter owing from the Mortgagors to the Junior Mortgage Loan Seller
under the Junior Mortgage Loans in any manner the Senior Mortgage Loan
Seller deems appropriate for its own benefit and protection. The Junior
Mortgage Loan Seller and the Senior Mortgage Loan Seller shall take such
further actions, if any, as may be reasonably necessary at the time of any
such proceedings, appointment, dissolution or winding up to effect the
direction contained in the preceding clause (a) and the appointment
contained in the preceding clause (b).
(v) The Senior Mortgage Loan Seller is hereby authorized by the
Junior Mortgage Loan Seller to take such actions with respect to the
Senior Mortgage Loans as it deems appropriate, without the involvement of
the Junior Mortgage Loan Seller, including, without limitation: (a) renew,
compromise, extend, accelerate or otherwise change the times of payments,
or any other terms, of any existing or future claims of the Senior
Mortgage Loan Seller against the Mortgagors arising out of the Senior
Mortgage Loans, (b) increase or decrease the rates of interest payable
thereon or any parts thereof, (c) exchange, enforce, waive or release any
security therefor, (d) apply such security and direct the order or manner
of sales thereof in such manner as the Senior Mortgage Loan Seller may at
its discretion determine, (e) release the Mortgagors or any guarantors of
any indebtedness of the Mortgagors from liability arising from the Senior
Mortgage Loans and (f) make optional future advances to the Mortgagors
related to the Senior Mortgage Loans, all without notice to the Junior
Mortgage Loan Seller and without affecting the subordination provided by
this Section 3.08(e).
(vi) The Junior Mortgage Loan Seller shall mark the original of
any promissory notes or other evidences of any existing or future
indebtedness of the Mortgagors to the Junior Mortgage Loan Seller with
respect to the Junior Mortgage Loans with a conspicuous legend which reads
substantially as follows:
"THIS PROMISSORY NOTE IS SUBORDINATED TO ANY PRESENT OR FUTURE
INDEBTEDNESS OWING FROM THE MAKER TO BANK OF AMERICA, N.A. AND ITS
SUCCESSORS AND ASSIGNS ARISING OUT OF LOAN NO. _____________________
DATED _____________ IN THE ORIGINAL PRINCIPAL AMOUNT OF
$_____________. THIS PROMISSORY NOTE MAY BE ENFORCED ONLY IN
ACCORDANCE WITH SECTION 3.08(e) OF THAT CERTAIN POOLING AND
SERVICING AGREEMENT DATED AS OF DECEMBER 1, 1999 EXECUTED BY BANK OF
AMERICA, N.A. AS THE MORTGAGE LOAN SELLER AND THE OTHER PARTIES
THERETO.
(vii) In the event that any payments or any cash or noncash
distributions are made to the Junior Mortgage Loan Seller in violation of
the terms of this Agreement, the Junior Mortgage Loan Seller shall receive
same in trust for the benefit of the Senior Mortgage Loan Seller, and
shall forthwith remit them to the Senior Mortgage Loan Seller in the form
in which they were received, together with such endorsements or documents
as may be necessary to effectively negotiate or transfer same to the
Senior Mortgage Loan Seller.
(viii) For violation of this Section 3.08(e), the Junior Mortgage
Loan Seller shall be liable for all loss and damage sustained by reason of
such breach, and upon any such violation the Senior Mortgage Loan Seller
may, at its option, accelerate the maturity of any of its existing or
future claims against the Mortgagors arising out of the Senior Mortgage
Loans.
(ix) The Junior Mortgage Loan Seller represents and warrants, and
each of the Junior Mortgage Loan Seller and the Senior Mortgage Loan
Seller agrees, that (A) this Section 3.08(e) shall be binding upon the
heirs, successors and assigns of the Junior Mortgage Loan Seller, the
Mortgagors and the Senior Mortgage Loan Seller; and (B) this Section
3.08(e) and any existing or future claims of the Senior Mortgage Loan
Seller against the Mortgagors may be assigned by the Senior Mortgage Loan
Seller, in whole or in part, without notice to the Junior Mortgage Loan
Seller or to the Mortgagors.
(x) Notwithstanding the provisions of Section 3.08(e)(iii), so
long as there has been no occurrence of any default under any agreements
between the Mortgagors and the Senior Mortgage Loan Seller, now existing
or hereafter entered into, the Junior Mortgage Loan Seller may receive
regularly scheduled principal and interest payments on the Junior Mortgage
Loans, provided, however, that the Junior Mortgage Loan Seller shall not
receive any prepayments of principal or interest on the said Junior
Mortgage Loans without the prior written consent of the Senior Mortgage
Loan Seller.
(xi) The Senior Mortgage Loan Seller and the Junior Mortgage Loan
Seller hereby agree that, anything to the contrary contained herein or in
the Senior Mortgage Loans or in the Junior Mortgage Loans notwithstanding,
they hereby waive, release and discharge forever any provisions whatsoever
and wheresoever contained in the documents evidencing or securing either
the Senior Mortgage Loans or the Junior Mortgage Loans, or both, which
provide that an event of default under the Senior Mortgage Loans shall
constitute an event of default under the Junior Mortgage Loans, and vice
versa.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which may
include an REO Acquisition) 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, and
which are not released from the Trust Fund pursuant to any other provision
hereof, if the Special Servicer determines, consistent with the Servicing
Standard, that such action would be in the best economic interest of the Trust.
The Special Servicer shall advance or direct the Master Servicer to advance, as
contemplated by Section 3.19(d), all costs and expenses to be incurred on behalf
of the Trust in any such proceedings, subject to each of the Master Servicer and
the Special Servicer being entitled to reimbursement for any such advance as a
Servicing Advance as provided in Section 3.05(a), and further subject to the
Special Servicer's being entitled to pay out of the related Liquidation Proceeds
any Liquidation Expenses incurred in respect of any Mortgage Loan, which
Liquidation Expenses were outstanding at the time such proceeds are received. In
connection with the foregoing, in the event of a default under any Mortgage Loan
or Group of Cross-Collateralized Mortgage Loans that are secured by real
properties located in multiple states, and such states include the State of
California or another state with a statute, rule or regulation comparable to the
State of California's "one action" rule, then the Special Servicer shall consult
with Independent counsel regarding the order and manner in which the Special
Servicer should foreclose upon or comparably proceed against such properties
(the cost of such consultation to be advanced by the Master Servicer as a
Servicing Advance, at the direction of the Special Servicer as contemplated by
Section 3.19(d), subject to the Master Servicer being entitled to reimbursement
therefor as a Servicing Advance as provided in Section 3.05(a)). When applicable
state law permits the Special Servicer to select between judicial and
non-judicial foreclosure in respect of any Mortgaged Property, the Special
Servicer shall make such selection in a manner consistent with the Servicing
Standard. Nothing contained in this Section 3.09 shall be construed so as to
require the Special Servicer, on behalf of the Trust, to make an offer 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 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 or otherwise, all such offers to be made in a manner
consistent with the Servicing Standard. If and when the Special Servicer or the
Master 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 making an offer at foreclosure or otherwise, the Special
Servicer or the Master Servicer, as the case may be, is authorized to have an
Appraisal completed with respect to such property (the cost of which Appraisal
shall be advanced by the Master Servicer as a Servicing Advance, subject to its
being entitled to reimbursement therefor as a Servicing Advance as provided in
Section 3.05(a), such Advance to be made at the direction of the Special
Servicer when the Appraisal is obtained by the Special Servicer).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan) 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 reasonable 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 by the Trust will not cause any of REMIC
I, REMIC II, REMIC III, REMIC IIIU or REMIC IV to fail to qualify as a
REMIC at any time that any Certificate is outstanding or, subject to
Section 3.17, cause the imposition of a tax on the Trust under the REMIC
Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
in lieu of foreclosure or otherwise, have a receiver of rents appointed with
respect to any Mortgaged Property, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed by an Independent Person who
regularly conducts Phase I Environmental Assessments and such additional
environmental testing, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith and
proceeding against the Mortgaged Property is reasonably likely to produce
a greater recovery to 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),
taking into consideration any associated liabilities, than not taking such
actions and not proceeding against such Mortgaged Property; 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/or regulations or, if such circumstances
or conditions are present for which any such action could be required,
that taking such actions with respect to such Mortgaged Property and
proceeding against the Mortgaged Property is reasonably likely to produce
a greater recovery to 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),
taking into consideration any associated liabilities, than not taking such
actions and not proceeding against such Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, 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 advanced by the Master Servicer at the
direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) 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 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 Trustee in writing of its
intention to so release all or a portion of such Mortgaged Property, (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 not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall provide written reports to the Master
Servicer, who will forward such reports to the Trustee, the Directing
Certificateholder, and the Rating Agencies, monthly regarding any actions taken
by the Special Servicer with respect to any Mortgaged Property securing a
defaulted Mortgage Loan as to which the environmental testing contemplated in
subsection (c) above has revealed that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied or
that any remedial, corrective or other further action contemplated by either
such clause is required, in each case until the earliest to occur of (i)
satisfaction of both such conditions and completion of all such remedial,
corrective or other further action, (ii) repurchase of the related Mortgage Loan
by the Mortgage Loan Seller and (iii) release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward copies of all
such reports to the Certificateholders upon written request promptly following
its receipt thereof. In addition, the Master Servicer will deliver or cause to
be delivered to any of the Class G, Class H, Class K, Class L, Class M and Class
N Certificateholders that shall request a copy of any such written reports and
any Phase I Environmental Assessments within 15 days after receipt of such
written reports and Phase I Environmental Assessments from the Special Servicer.
(f) The Special Servicer, with the assistance of the Master
Servicer, shall file the reports of foreclosures and abandonments and reports
relating to any cancellation of indebtedness income with respect to any
Mortgaged Property required by Section 6050H, 6050J and 6050P of the Code and
deliver to the Trustee an Officer's Certificate stating that such reports have
been filed. Such reports shall be in form and substance sufficient to meet the
reporting requirements imposed by such Sections 6050H, 6050J and 6050P of the
Code.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
The Master Servicer, at the direction of the Special Servicer, shall advance the
costs incurred in any such deficiency action, and any related consultation with
counsel, subject to its being entitled to reimbursement therefor as a Servicing
Advance as provided in Section 3.05(a).
(h) The Special Servicer shall maintain accurate records, of each
Final Recovery Determination in respect of any defaulted Mortgage Loan or REO
Property and the basis thereof. Each Final Recovery Determination shall be
evidenced by an Officer's Certificate delivered to the Trustee no later than the
tenth Business Day following such Final Recovery Determination.
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or Special Servicer of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Master Servicer
or Special Servicer, as the case may be, shall immediately notify the Trustee
and request delivery of the related Mortgage File by delivering thereto a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer of the Master Servicer or Special Servicer, as applicable. Any
such Request for Release 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. Upon receipt of such notice and request
conforming in all material respects to the provisions hereof, the Trustee shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as applicable. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate 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), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee 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 the 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 which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, the Request for Release shall be released by the Trustee to the
Master Servicer or the Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly (but in no event later
than four (4) Business Days following such request) execute and deliver to the
Special Servicer any court pleadings, requests for trustee's sale or other
documents furnished by the Special Servicer and certified by it as being
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity or for any other purpose necessary or
advisable in the reasonable, good faith judgment of the Special Servicer;
provided, however, that the Special Servicer shall be responsible for the
preparation of all such documents and pleadings; and when submitted to the
Trustee for signature, such documents or pleadings shall be accompanied by a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee and certifying as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances.
(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, without limitation, 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 applicable Master Servicing Fee Rate on
the Stated Principal Balance as of the Due Date in the immediately preceding
Collection Period and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Original Closing Date) and
applicable law. 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, 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 Insurance Proceeds or Liquidation Proceeds, to the extent
permitted by Section 3.05(a). The right to receive the Master Servicing Fee may
not be transferred in whole or in part except in accordance with the following
paragraph, except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement or except as
provided in Section 3.22(d). The Master Servicer shall, monthly out of its
Master Servicing Fee, pay to any Sub-Servicer retained by the Master Servicer
such Sub-Servicer's sub-servicing fee (including, without limitation, any
Primary Servicing Fee, if applicable), to the extent such Sub-Servicer is
entitled thereto under the applicable Sub-Servicing Agreement.
Midland may, at its option and at its expense, sell or pledge the
rights to the "Transferable Portion" (as hereinafter defined) of its Master
Servicing Fee; provided that in the event of any resignation or termination of
Midland (or any successor thereto) as Master Servicer, the rights of Midland or
any transferee of such Transferable Portion shall terminate (except for the
right to receive the Excess Portion (as defined below), if any, on any
Distribution Date as set forth in the penultimate sentence of this paragraph).
In the event of the appointment of a successor Master Servicer, the Trustee
shall cooperate with Midland to attempt to appoint a successor (which may be the
Trustee) which, subject to the Trustee's satisfaction as to quality of servicing
and the best interests of Certificateholders and the requirements of Article VII
of this Agreement, will perform the services of the Master Servicer for payment
of an amount (the "Successor Servicer Retained Fee") less than the full Master
Servicing Fee expressed as a fixed number of basis points such that the
Transferable Portion is reduced only to the extent reasonably necessary (in the
sole discretion of the Trustee) to provide market rate compensation (except that
the Transferable Portion shall be reduced to zero during any period for which
the Trustee serves as successor servicer hereunder by reason of a default by the
Master Servicer). If, and only if, the successor Master Servicer shall have so
agreed to perform such services for less than the full Master Servicing Fee,
then while such successor Master Servicer will be entitled to receive the full
Master Servicing Fee, it shall pay the excess of the Transferable Portion (which
would otherwise be payable) over the difference between the Master Servicing Fee
and the Successor Servicer Retained Fee on each Distribution Date (any such
excess, the "Excess Portion") to Midland or any transferee of the Transferable
Portion, as applicable, at such time and to the extent the Master Servicer is
entitled to receive payment of the Master Servicing Fees under this Agreement,
notwithstanding any termination of Midland under this Agreement. If the
successor Master Servicer shall not have agreed to perform such services for
such lesser amount, the rights of Midland or any transferee to the Transferable
Portion shall terminate. The "Transferable Portion" of the Master Servicing Fee
is the amount by which the Master Servicing Fee exceeds the sum of (i) the
Primary Servicing Fee, (ii) the Standby Fee and (iii) the amount of the related
Master Servicing Fee calculated using a rate of 0.01% per annum.
(b) The Master Servicer shall be entitled to receive as additional
servicing compensation:
(i) Net Default Charges with respect to any Portfolio Mortgage
Loan and any Conduit Mortgage Loan initially primary serviced by Bank of
America, N.A. (as indicated on the initial Mortgage Loan Schedule),
Default Charges with respect to any other Mortgage Loan, assumption fees,
modification fees charges for beneficiary statements or demands and any
similar fees (excluding Prepayment Premiums), but in each case only to the
extent actually paid by a Mortgagor with respect to a Mortgage Loan that
is not a Specially Serviced Mortgage Loan;
(ii) amounts collected for checks returned for insufficient
funds, to the extent actually paid by a Mortgagor with respect to any
Mortgage Loan;
(iii) any Prepayment Interest Excesses collected on the Mortgage
Loans, to the extent not offset by any Prepayment Interest Shortfall;
(iv) interest or other income earned on deposits in the
Certificate Account, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to the
Certificate Account for each Collection Period); and
(v) to the extent not required to be paid to any Mortgagor under
applicable law or under the related Mortgage, any interest or other income
earned on deposits in the Servicing Accounts maintained by the Master
Servicer;
provided that with respect to the items of additional servicing compensation set
forth in clauses (i), and (ii) above, the Master Servicer shall, in turn, pay
the amounts described therein to the related Sub-Servicer to the extent such
Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement.
In accordance with this Agreement and the applicable Sub-Servicing
Agreements, 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 Sub-Servicer retained by it 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, or
Servicing Accounts or Reserve Accounts, as applicable, and the Master Servicer
shall not be entitled to reimbursement from the Trust Fund 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
as of the Due Date in the immediately preceding Collection Period and for the
same number of days respecting which any related interest payment due on such
Mortgage Loan or deemed to be due on such REO Loan is computed under the terms
of the related Mortgage Note (as such terms may be modified at any time
following the Original Closing Date) and applicable law. 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. As to each Specially Serviced Mortgage Loan
and each REO 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 Standby Fee with respect to each
Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO Loan, the
Standby Fee shall accrue in the same manner as the Master Servicing Fee from
time to time at the Standby Fee Rate on the basis of the same principal amount
and for the same number of days respecting which any related interest payment
due on such Mortgage Loan or deemed to be due on such REO Loan is computed under
the terms of the related Mortgage Note (as such terms may be modified at any
time following the Original Closing Date). Standby Fees shall be payable on each
Distribution Date by the Master Servicer on a loan-by-loan basis out of its
Master Servicing Fees received with respect to each Mortgage Loan and each REO
Loan or by means of a P&I Advance.
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, except that no Workout Fee will be payable from or
based upon the receipt of, any Purchase Price paid by the Mortgage Loan Seller
in satisfaction of its repurchase obligation under this Agreement. Furthermore,
no Workout Fees will be payable from or based upon the receipt of any
Liquidation Proceeds paid by any Majority Certificateholder of the Controlling
Class, the Special Servicer, or the Master Servicer in connection with the
purchase of all the Mortgage Loans and any REO Properties in the Trust Fund
pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to
the exceptions provided for in the two preceding sentences, the Workout Fee
shall be payable from, and shall be calculated by application of the Workout Fee
Rate to, each collection of interest (other than Default Interest) and principal
(including scheduled payments, prepayments, balloon payments and Liquidation
Proceeds) 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 will become payable if and when such Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated other than for
cause or resigns in accordance with clause (ii) of the first paragraph of
Section 6.04 or is replaced in accordance with Section 3.23, it shall retain the
right to receive any and all Workout Fees payable in respect of Mortgage Loans
that became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were still such at the time of such termination or resignation (and
the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such Mortgage Loan
ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any partial or unscheduled payment, or full or discounted payoff from the
related Mortgagor or any Liquidation Proceeds (other than in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by the
Special Servicer pursuant to Section 3.18, by the Master Servicer, the Special
Servicer or the Majority Certificateholder of the Controlling Class pursuant to
Section 3.18 or Section 9.01, or by the Mortgage Loan Seller pursuant to Section
2.03 within 90 days (or, if an additional 90-day extension is permitted, 180
days) of its discovery or notice of the breach or Document Defect that gave rise
to the repurchase obligation, and other than in connection with the condemnation
or other governmental taking of a Mortgaged Property or REO Property). As to
each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee
shall be payable from, and shall be calculated by application of the Liquidation
Fee Rate to, such full or discounted payoff and/or Liquidation Proceeds;
provided, that (without limiting the Special Servicer's right to any Workout Fee
that is properly payable therefrom), no Liquidation Fee will be payable from, or
based upon the receipt of, Liquidation Proceeds collected as a result of any
purchase of a Specially Serviced Mortgage Loan described in the parenthetical to
the first sentence of this paragraph.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
Subject to the Special Servicer's right to employ Sub-Servicers, the
Special Servicer's right to receive the Special Servicing Fee, the Standby Fee,
the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive as additional
special servicing compensation:
(i) (A) to the extent accrued for the period when any Mortgage
Loan is a Specially Serviced Mortgage Loan or to the extent allocable to
an REO Loan, any Net Default Charges actually collected on such Mortgage
Loan or REO Loan, as the case may be, and (B) assumption fees or fees for
waivers of due-on-encumbrance clauses, modification fees, charges for
beneficiary statements or demands and any similar fees (excluding
Prepayment Premiums) actually collected on or with respect to Specially
Serviced Mortgage Loans or REO Loans; and
(ii) 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).
To the extent the amounts described in clause (i)(B) of the
preceding paragraph are collected by the Master Servicer, the Master Servicer
shall promptly pay such amounts to the Special Servicer and shall not be
required to deposit such amounts in the Certificate Account pursuant to Section
3.04(a). Additional servicing compensation to which the Master Servicer (or, if
so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained
thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees,
modification fees, Default Charges, charges for beneficiary statements or
demands and any similar fees (excluding Prepayment Premiums) collected by the
Special Servicer on Mortgage Loans that are not Specially Serviced Mortgage
Loans or REO Loans, or in the form of amounts collected for checks returned for
insufficient funds with respect to any Mortgage Loans (including, without
limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the
Master Servicer by the Special Servicer.
The Special Servicer shall be required to pay out of its own funds
all overhead, general and administrative expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due and owing to any Sub-Servicers retained by it and the
premiums for any blanket policy obtained by it 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 or the REO Account and the Master
Servicer is not required to advance such expenses at the direction of the
Special Servicer, and the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If (i) the Special Servicer is required under this Agreement to
make a Servicing Advance, but does not make such Servicing Advance within two
(2) Business Days after the Special Servicer receives notice from the Trustee or
the Master Servicer of failure to make such Servicing Advance, the Master
Servicer shall, if it has actual knowledge of such failure on the part of the
Special Servicer, make such Servicing Advance and if the Master Servicer fails
to make such Servicing Advance, then within one (1) Business Day after the
Master Servicer receives notice from the Trustee of its failure to make such
Servicing Advance, and/or (ii) the Master Servicer is required under this
Agreement to make a Servicing Advance, but does not make such Servicing Advance
within one (1) Business Day after the Master Servicer receives notice from the
Trustee of failure to make such Servicing Advance, then if the Trustee has
actual knowledge of such failure on the part of the Master Servicer in either of
clause (i) or (ii) above, it (subject to Section 3.11(g) below) shall make such
Servicing Advance. Any failure by the Master Servicer or the Special Servicer to
make a Servicing Advance it is required to make 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(a).
(f) As and to the extent permitted by Section 3.05(a), the Master
Servicer, the Special Servicer (to the extent it has not already been reimbursed
for any such Servicing Advance by the Master Servicer) and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Servicing Advance made thereby (out
of its own funds) for so long as such Servicing Advance is outstanding, and such
interest will be paid: first, out of any Default Charges collected on or in
respect of the related Mortgage Loan (but only if such Mortgage Loan is a
Portfolio Mortgage Loan or a Conduit Mortgage Loan initially primary serviced by
Bank of America, N.A. (as indicated on the initial Mortgage Loan Schedule), or
is a Specially Serviced Mortgage Loan as to which such Default Charges were
collected during, and are allocable to, the period, if any, that it was a
Specially Serviced Mortgage Loan or an REO Loan); and second, at any time
coinciding with or following the reimbursement of such Servicing Advance, out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account. As and to the extent provided in Sections 3.03(a) and
3.05(a), the Master Servicer shall reimburse itself, the Special Servicer or the
Trustee, as appropriate, for any Servicing Advance made thereby as soon as
practicable after funds available for such purpose are deposited in the
Certificate Account or a Servicing Account.
(g) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance (including, without limitation, an Emergency Advance)
that it determines in its reasonable, good faith judgment would constitute a
Nonrecoverable Servicing Advance. In addition, Nonrecoverable Servicing Advances
shall be reimbursable pursuant to Section 3.05(a)(vii) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee, that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be evidenced by an Officer's Certificate delivered promptly to
the Trustee (or, if applicable, retained thereby), the Depositor, and the Rating
Agencies, setting forth the basis for such determination, together with (if such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information, including, without limitation, engineers' reports, environmental
surveys, inspection reports, rent rolls, income and expense statements or
similar reports, that the Master Servicer or the Special Servicer may have
obtained and that supports such determination. If such an Appraisal shall not
have been required and performed pursuant to the terms of this Agreement, the
Master Servicer or the Special Servicer, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of a Servicing Advance, obtain an Appraisal for such purpose
at the expense of the Trust. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Servicing Advance.
(h) Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Certificate Account any servicing expense that, if paid by the Master Servicer
or the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Depositor and the
Rating Agencies, setting forth the basis for such determination and accompanied
by any information that the Master Servicer or the Special Servicer may have
obtained that supports such determination.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) Commencing in 2001, the Master Servicer or, in the case of any
inspection required to be performed 60 days after any Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer, shall, at its own cost
and expense, inspect or cause the inspection of each Mortgaged Property at least
once every two years (or, if the related Mortgage Loan has a then current
balance greater than $2,000,000 or equal to or greater than two percent (2%) of
the then current principal balance of the Mortgage Pool, at least once every
year) and 60 days after delinquency, provided that at least 50% of the Mortgaged
Properties (by both number and aggregate Stated Principal Balances of the
related Mortgage Loans) will be inspected each year by the Master Servicer (or
an entity employed by the Master Servicer for such purpose) or, in accordance
with the second succeeding sentence, by the Special Servicer. The Master
Servicer shall be responsible for such inspections only in respect of (i)
Mortgage Loans that are not Specially Serviced Mortgage Loans and (ii) Corrected
Mortgage Loans. The Special Servicer, subject to statutory limitations or
limitations set forth in the related Mortgage Loan documents, shall perform or
cause to be performed a physical inspection of a Mortgaged Property within 60
days after the servicing of the related Mortgage Loan is transferred thereto
pursuant to Section 3.21(a) and annually thereafter so long as it is a Specially
Serviced Mortgage Loan. The Master Servicer and the Special Servicer shall each
prepare or cause to be prepared as soon as reasonably possible a written report
of each such inspection performed or caused to be performed thereby detailing
the condition of the Mortgaged Property and specifying the existence of (i) any
vacancy in the Mortgaged Property that is, in the reasonable judgment of the
Master Servicer or Special Servicer (or their respective designees), as the case
may be, material and is evident from such inspection, (ii) any abandonment of
the Mortgaged Property, (iii) any change in the condition or value of the
Mortgaged Property that is, in the reasonable judgment of the Master Servicer or
Special Servicer (or their respective designees), as the case may be, material
and is evident from such inspection, or (iv) any waste on or deferred
maintenance in respect of the Mortgaged Property that is evident from such
inspection. The Master Servicer and the Special Servicer each shall (i) within
15 days of the preparation thereof, unless otherwise directed, deliver (in hard
copy or in electronic format, at the Master Servicer's or the Special Servicer's
option) to the Directing Certificateholder, the Rating Agencies, each other and
the Trustee, which shall then, as required by Section 8.12(b), upon written
request of a Class G, Class H, Class K, Class L, Class M, and Class N
Certificateholder, deliver to such Holder a copy of and (ii) upon request by any
such Person, promptly discuss therewith the contents of each such written report
prepared or caused to be prepared by or on behalf of it. Furthermore, the Master
Servicer shall obtain (and shall deliver to the requesting party and the
Trustee) such additional information with respect to the matters addressed in
such written report as the Special Servicer, and/or the Directing
Certificateholder, may reasonably request and shall cooperate with and
reasonably assist the Special Servicer in making direct inquiries with any
Mortgagor to the extent any such direct inquiry by the Special Servicer would
not violate the terms of any applicable Sub-Servicing Agreement; provided that
if the Special Servicer or any such Certificateholder shall desire such an
inquiry to be made of a Mortgagor, and if the subject Mortgage Loan is then
being primary serviced by a Sub-Servicer, then the Master Servicer shall in each
instance (regardless of whether such Mortgage Loan was originated by such
Sub-Servicer), unless otherwise agreed by such Sub-Servicer, first request that
such Sub-Servicer make such inquiry (and the Master Servicer or the Special
Servicer may contact such Mortgagor directly in such instance if such request
has been so made to such Sub-Servicer and the requested information has not
thereafter been obtained by such Sub-Servicer within a reasonable time). The
Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(a) and, if and to the extent delivered to it in a written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(a), the Trustee shall
have no obligation to confirm that inspections of the Mortgaged Properties are
being performed in accordance with this Section 3.12(a). The preceding sentence
notwithstanding, in the event the Trustee has received, as of December 31 of any
calendar year, inspection reports with respect to less than 50% of the Mortgaged
Properties as set forth in the first sentence of this Section 3.12(a), the
Trustee shall notify the Master Servicer of such fact in writing on or before
January 31 of the immediately succeeding calendar year. The notice provided by
the Trustee to the Master Servicer of the deficiency in the number of inspection
reports provided to the Trustee, shall constitute notice "requiring the same to
be remedied" within the meaning of Section 7.01(a)(vi) hereof and shall so state
on its face. If the Master Servicer does not provide satisfactory evidence
(which shall include the presentation of the required reports) of the
performance of the number of inspections required pursuant to the first sentence
of this Section 3.12(a) within 30 days of such notice, the Master Servicer shall
be deemed to have failed duly to observe and perform in all material respects
its covenants and agreements set forth in this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially Serviced
Mortgage Loans and REO Properties, and the Master Servicer, in the case of all
other Mortgage Loans, shall make reasonable efforts to collect or otherwise
obtain promptly (from the related Mortgagor in the case of a Mortgage Loan)
annual and quarterly operating statements and rent rolls of the related
Mortgaged Property or REO Property (and financial statements of the related
Mortgagor in the case of a Mortgage Loan), whether or not delivery of such items
is required pursuant to the terms of the related Mortgage. If the Master
Servicer fails to obtain required operating statements and/or rent rolls within
thirty (30) days after the required time the Mortgagor is to deliver such
operating statements and/or rent rolls pursuant to the related Mortgage Loan
Documents, or, if the related Mortgage Loan has no such requirements, within one
hundred twenty (120) days after the Mortgagor's fiscal year (or any quarter
thereof) ends, the Special Servicer, after consultation with and in cooperation
with the Master Servicer and any related Sub-Servicers, may communicate with the
related Mortgagor in an effort to collect the uncollected operating statements
and rent rolls. The Special Servicer, in the case of the Specially Serviced
Mortgage Loans and REO Properties, and the Master Servicer, in the case of all
other Mortgage Loans, shall promptly: (i) review all such items as may be
collected; (ii) subject to Section 4.02(b), prepare written reports based on
such reviews identifying the revenues, expenses, Net Cash Flow and Debt Service
Coverage Ratios for the related Mortgage Loans and REO Loans and any
extraordinary increases or decreases in expenses or revenues associated with the
related Mortgaged Properties and REO Properties; (iii) unless otherwise
directed, deliver copies (in hard copy or in electronic format, at the Master
Servicer's or the Special Servicer's option) of the collected items, and subject
to Section 4.02(b), unless otherwise directed, deliver the written reports
prepared in respect thereof, to the Directing Certificateholder, the Rating
Agencies, each other and the Trustee, which shall, as required by Section
8.12(b), upon written request of a Class G, Class H, Class K, Class L, Class M,
and Class N Certificateholder, deliver a copy to such Holder, in each case
within 15 days of its receipt or preparation pursuant to Section 4.02(b), as
applicable (it being understood and agreed that with respect to Mortgage Loans
(including, without limitation, Specially Serviced Mortgage Loans) that are
primary serviced by a Sub-Servicer, such collected items shall be deemed to have
been received by the Master Servicer or the Special Servicer, as the case may
be, at the same time they are received by the applicable Sub-Servicer); and (iv)
promptly upon the request of any Person referred in the immediately preceding
clause (iii), to discuss therewith the contents of the collected items and the
written reports referred to in the immediately preceding clause (iii).
Furthermore, the Master Servicer shall obtain (and shall deliver to the
requesting party and the Trustee) such additional information with respect to
the matters addressed in the collected items and written reports referred to
above as the Special Servicer, and/or the Directing Certificateholder, and/or a
Class G, Class H, Class K, Class L, Class M and Class N Certificateholder, may
reasonably request and shall cooperate with and reasonably assist the Special
Servicer in making direct inquiries with any Mortgagor to the extent any such
direct inquiry by the Special Servicer would not violate the terms of any
applicable Sub-Servicing Agreement; provided that if the Special Servicer or any
such Certificateholder shall desire such an inquiry to be made of a Mortgagor,
and if the subject Mortgage Loan is then being primary serviced by a
Sub-Servicer, then the Master Servicer shall in each instance (regardless of
whether such Mortgage Loan was originated by such Sub-Servicer), unless
otherwise agreed by such Sub-Servicer, first request that such Sub-Servicer make
such inquiry (and the Master Servicer or the Special Servicer may contact such
Mortgagor directly in such instance if such request has been so made to such
Sub-Servicer and the requested information has not thereafter been obtained by
such Sub-Servicer within a reasonable time). The Trustee shall make available to
Certificateholders, Certificate Owners and prospective Certificateholders and
Certificate Owners (which prospective Certificateholders and Certificate Owners
have been certified to it as such by a Certificateholder or a Certificate
Owner), in accordance with Section 8.12(b), copies of all the written reports
delivered to it pursuant to this Section 3.12(b) and, if and to the extent
delivered to it in written or electronic format, the related additional
information referred to in the preceding sentence. In the absence of actual
knowledge that the Master Servicer or the Special Servicer is in default under
this Section 3.12(b), the Trustee shall have no obligation to confirm that the
Master Servicer or the Special Servicer has or is attempting to collect any of
the items described above in this Section 3.12(b).
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Rating Agencies and the Trustee, which shall, as required by Section
8.12(b), upon written request of a Class G, Class H, Class K, Class L, Class M
and Class N Certificateholder, deliver a copy to such Holder, with a copy to the
Depositor, on or before April 30 of each year, beginning April 30, 2000, an
Officer's Certificate stating 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 during such calendar
year, has been made under the signing 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 in all material respects fulfilled all
of its obligations under this Agreement throughout such calendar year, or, if
there has been a material 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 the qualification or status as a REMIC of,
or otherwise asserting a tax (other than ad valorem real property taxes or other
similar taxes on REO Property) on the income or assets of, any portion of the
Trust Fund from the Internal Revenue Service or from any other governmental
agency or body or, if it has received any such notice, specifying the details
thereof. The signing officer shall have no personal liability with respect to
the content of any such statement, and the Master Servicer or the Special
Servicer, as the case may be, shall be deemed to have made such statement and
shall assume any liability resulting therefrom.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000 (or, as
to any such year, such earlier date as is contemplated by the last sentence of
this paragraph), each of the Master Servicer and the Special Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Depositor, the Rating Agencies and the Trustee, which shall promptly
deliver a copy to the Directing Certificateholder and, as required by Section
8.12(b), upon request of a Class G, Class H, Class K, Class L, Class M and Class
N Certificateholder, to such Holder, to the effect that such firm has examined
such documents and records as it has deemed necessary and appropriate relating
to the Master Servicer's or the Special Servicer's, as the case may be,
servicing of the Mortgage Loans under this Agreement or the servicing of
mortgage loans similar to the Mortgage Loans under substantially similar
agreements for the preceding calendar year (or during the period from the date
of commencement of the Master Servicer's or the Special Servicer's, as the case
may be, duties hereunder until the end of such preceding calendar year in the
case of the first such certificate) and that, on the basis of such examination
conducted substantially in compliance with generally accepted auditing standards
and the Uniform Single Attestation Program for Mortgage Bankers, such servicing
has been conducted in compliance with similar agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
generally accepted auditing standards and the Uniform Single Attestation Program
for Mortgage Bankers require it to report, in which case such exceptions and
errors shall be so reported. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by Sub-Servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those Sub-Servicers. If the Depositor notifies the
Trustee, the Master Servicer and the Special Servicer on or before March 1 of
any year that such statements are required to be filed with the Commission as
part of the Form 10-K for the Trust covering the prior calendar year, each of
the Master Servicer and the Special Servicer shall deliver such statement in
respect of it by March 15 of such year.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide
or cause to be provided to the Trustee and to the OTS, the FDIC, and any other
federal or state banking or insurance regulatory authority that may exercise
authority over any Certificateholder, access to any documentation regarding the
Mortgage Loans and the other assets of the Trust Fund that are within its
control which may be required by this Agreement or by applicable law. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Master Servicer
or the Special Servicer, as the case may be, designated by it.
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, shall sell
any REO Property by the end of the third calendar year beginning after the year
in which the Trust acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code, unless the Special Servicer either (i) is
granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee and the REMIC
Administrator an Opinion of Counsel, addressed to the Trustee, the Special
Servicer and the REMIC Administrator, to the effect that the holding by the
Trust of such REO Property subsequent to the end of the third calendar year
beginning after the year in which such acquisition occurred, will not result in
the imposition of taxes on "prohibited transactions" of REMIC I, REMIC II, REMIC
III, REMIC IIIU or REMIC IV as defined in Section 860F of the Code or cause
REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Special Servicer
is granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such period longer than three years following the year that such
property was acquired, as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any reasonable expense incurred by the Special
Servicer in connection with its being granted 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 be
an expense of the Trust payable out of the Certificate Account pursuant to
Section 3.05(a). Any REO Extension shall be requested by the Special Servicer no
later than 60 days before the end of the third calendar year following the year
in which the Trust acquired ownership of the related REO Property.
(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 (or cause to be established and
maintained) one or more accounts (collectively, the "REO Account"), to be 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 and may consist of one account for all
the REO Properties. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, within two Business Days of receipt, all REO
Revenues, Liquidation Proceeds (net of all Liquidation Expenses paid therefrom)
and Insurance Proceeds received in respect of an REO Property. The Special
Servicer is authorized to pay out of related Liquidation Proceeds any
Liquidation Expenses incurred in respect of an REO Property and outstanding at
the time such proceeds are received. Funds in the REO Account may be invested
only 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 notice to the other parties hereto 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. Within one Business Day following the end
of each Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Certificate Account or deliver to 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 such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that 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, maintenance
and disposition of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items to be incurred during the following twelve-month
period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing and other requirements of the Code for maintaining the
status of "foreclosure property", however, the Special Servicer shall have full
power and authority to do any and all things in connection therewith as are in
the best interests of and for the benefit of the Certificateholders (as
determined by the Special Servicer in its good faith and reasonable judgment).
Subject to this Section 3.17, the Special Servicer may earn "net income from
foreclosure property" within the meaning of Code Section 860G(d) if it
determines that earning such income is in the best interests of
Certificateholders on a net after-tax basis as compared with net leasing such
REO Property or operating such REO Property on a different basis. In connection
therewith, the Special Servicer shall deposit or cause to be deposited on a
daily basis (and in no event later than the second Business Day following
receipt of such funds) in the applicable REO Account all revenues received by it
with respect to each REO Property and the related REO Loan, and shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to such REO Property, funds necessary for the proper operation, management,
leasing and maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such
REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Special Servicer or the Master Servicer determines, in its
reasonable, good faith judgment, that such payment would be a Nonrecoverable
Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered
to require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer 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.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
SECTION 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) The parties hereto 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 and 9.01.
(b) If the Special Servicer has determined, in its good faith and
reasonable judgment, that any Defaulted Mortgage Loan will become the subject of
a foreclosure sale or similar proceeding, and that the sale of such Mortgage
Loan under the circumstances provided in this Section 3.18(b) or in Section
3.18(c) is in accordance with the Servicing Standard, the Special Servicer shall
promptly so notify in writing the Trustee, the Master Servicer and each Rating
Agency, and the Trustee shall, within 5 Business Days after receipt of such
notice, notify all the Certificateholders of the Controlling Class. The Majority
Certificateholder of the Controlling Class may at its option purchase from the
Trust, at a price equal to the applicable Purchase Price, any such Defaulted
Mortgage Loan. The Purchase Price for any Mortgage Loan purchased under this
paragraph (b) shall be deposited into the Certificate Account, and the Trustee,
upon receipt of an Officer's Certificate from the Master Servicer to the effect
that such deposit has been made, shall release or cause to be released to the
Certificateholder(s) effecting such purchase (or any designee thereof) 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 Certificateholder(s) effecting
such purchase (or any designee thereof) ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Certificateholder(s) effecting such purchase (or
any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class has
not purchased any Defaulted Mortgage Loan described in the first sentence of
Section 3.18(b) within five (5) Business Days of its having received notice in
respect thereof pursuant to Section 3.18(b) above, either the Special Servicer
or, subject to the Special Servicer's prior rights in such regard, the Master
Servicer may at its option purchase such Mortgage Loan from the Trust, within
five (5) Business Days after the Majority Certificateholder of the Controlling
Class fails to so purchase, 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 Trustee, upon receipt of an
Officer's 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) The Special Servicer may offer to sell or otherwise realize upon
any Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b)
or Section 3.18(c) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would maximize the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
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). Such offer shall be made in a commercially reasonable manner
(which, for purposes hereof, includes an offer to sell without representation or
warranty except to the limited extent contemplated in Section 3.18(f)). Unless
the Special Servicer determines that acceptance of any offer would not be in the
best economic interests of the Trust, the Special Servicer shall accept the
highest cash offer received from any Person that constitutes a fair price for
such Mortgage Loan. In the absence of any offer 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 and, otherwise, in accordance with
the Servicing Standard.
The Special Servicer shall use its reasonable efforts to solicit
offers 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 offers are received
contemporaneously, highest) cash offer received from any Person that constitutes
a fair price (determined pursuant to Section 3.18(e) below) for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price (determined pursuant to Section 3.18(e) below) 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 offer, 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 Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit an offer 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
respective Affiliates may make an offer for or purchase any Defaulted Mortgage
Loan or any REO Property pursuant hereto.
(e) Whether any cash offer 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 or, if such cash
offer is from an Interested Person, by the Trustee. In determining whether any
offer received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely
on the most recent Appraisal or updated Appraisal conducted in accordance with
this Agreement within the preceding 12-month period or, in the absence of any
such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser,
retained by the Special Servicer. Such appraiser shall be selected by the
Special Servicer if neither the Special Servicer nor any Affiliate thereof is
making an offer with respect to a Defaulted Mortgage Loan or REO Property and
shall be selected by the Trustee if the Special Servicer or an Affiliate thereof
is making such an offer. The cost of any such narrative appraisal shall be
advanced by the Master Servicer, at the direction of the Special Servicer, and
shall constitute a Servicing Advance. When any Interested Person is among those
making an offer with respect to a Defaulted Mortgage Loan or REO Property, the
Special Servicer shall require that all offers be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
offered amount. In determining whether any offer from a Person other than an
Interested Person 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, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, 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).
Notwithstanding the other provisions of this Section 3.18, no cash offer from
any Interested Person or any Affiliate thereof in an amount less than the
related Purchase Price shall constitute a fair price for any Defaulted Mortgage
Loan or REO Property unless such offer is the highest cash offer received and at
least two additional offers (not including the offers of Interested Persons or
any Affiliates thereof) have been received from Independent third parties
reflecting prices less than the related Purchase Price. The Purchase Price for
any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair
price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, 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 offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
(except such recourse imposed by those representations and warranties typically
given in such transactions, any prorations applied thereto and any customary
closing matters), and if such sale is consummated in accordance with the terms
of this Agreement, none of the Special Servicer, the Master Servicer or 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, as evidenced by an Opinion of Counsel, changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash
offer if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower offer are
more favorable).
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available during
normal business hours for review by each Rating Agency and by any
Certificateholder or Certificate Owner or any Person identified to the Master
Servicer as a prospective transferee of a Certificate or an interest therein,
copies of the Servicing Files; provided that, if the Master Servicer in its
reasonable, good faith determination believes that any item of information
contained in such Servicing Files is of a nature that it should be conveyed to
all Certificateholders at the same time, it shall, as soon as reasonably
possible following its receipt of any such item of information, disclose such
item of information to the Trustee as part of the reports to be delivered to the
Trustee by the Master Servicer pursuant to Section 4.02(b), and until the
Trustee has either disclosed such information to all Certificateholders in a
Distribution Date Statement or has properly filed such information with the
Commission on behalf of the Trust under the Exchange Act, the Master Servicer
shall be entitled to withhold such item of information from any
Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Mortgage Loan available to any Person if the
disclosure of such particular items of information is expressly prohibited by
applicable law or the provisions of any related Mortgage Loan documents. Except
as set forth in the provisos to the preceding sentence, copies of all or any
portion of any Servicing File are to be made available by the Master Servicer
upon request; however, the Master Servicer shall be permitted to require payment
of a sum sufficient to cover the reasonable out-of-pocket costs for making such
copies (other than with respect to the Rating Agencies). The Special Servicer
shall, as to each Specially Serviced Mortgage Loan and REO Property, upon the
request of the Master Servicer, promptly deliver to the Master Servicer a copy
of each document or instrument added to the related Servicing File, and the
Master Servicer shall in no way be in default under this Section 3.19(a) solely
by reason of the Special Servicer's failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person 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 will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary. The Master Servicer shall not be liable for the
dissemination of information in accordance with this Section 3.19(a).
(b) Within 60 days (or within such longer period as the Special
Servicer is (as certified thereby to the Trustee in writing) diligently and in
good faith proceeding to obtain the Appraisal referred to below) after the
earliest of (i) the date on which any Mortgage Loan becomes a Modified Mortgage
Loan, (ii) the occurrence of any uncured delinquency in Monthly Payments with
respect to any Mortgage Loan, (iii) the date on which a receiver is appointed in
respect of the Mortgaged Property securing any Mortgage Loan, (iv) the date on
which the Mortgagor under any Mortgage Loan becomes the subject of bankruptcy or
insolvency proceedings, and (v) the date on which the Mortgaged Property
securing any Mortgage Loan becomes an REO Property (each such Mortgage Loan and
any related REO Loan, until it ceases to be such in accordance with the
following paragraph, a "Required Appraisal Loan"), the Special Servicer shall
obtain an Appraisal of the related Mortgaged Property; unless an Appraisal
thereof had previously been received within the prior twelve months. The cost of
such Appraisal shall be advanced by the Master Servicer, subject to Section
3.19(d), such Advance to be made at the direction of the Special Servicer when
the Appraisal is received by the Special Servicer. For purposes of this Section
3.19(b), an Appraisal may, in the case of any Mortgage Loan with an outstanding
principal balance of less than $2,000,000 only, consist solely of an internal
valuation performed by the Special Servicer.
With respect to each Required Appraisal Loan (unless such loan has
become a Corrected Mortgage Loan and has remained current for three (3)
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during such three (3) months, in which case it will cease
to be a Required Appraisal Loan), the Special Servicer shall, within 30 days of
each anniversary of such loan's becoming a Required Appraisal Loan, order an
update of the prior Appraisal (the cost of which shall be advanced by the Master
Servicer as a Servicing Advance at the direction of the Special Servicer,
subject to Section 3.19(d)). Based upon such Appraisal, the Special Servicer
shall redetermine and report to the Trustee and the Master Servicer the
Appraisal Reduction Amount, if any, with respect to such loan. The Master
Servicer shall verify the accuracy of the mathematical computation of any
Appraisal Reduction Amount determined by the Special Servicer and that the
amounts used therein are consistent with the Master Servicer's records.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other and to the Trustee (for inclusion in the Mortgage File) copies of
all Appraisals, environmental reports and engineering reports (or, in each case,
updates thereof) obtained with respect to any Mortgaged Property or REO
Property. Upon the request of any Rating Agency or any Class G, Class H, Class
K, Class L, Class M and Class N Certificateholder, as required by Section
8.12(b), the Trustee shall deliver copies of any of the items delivered pursuant
to the preceding sentence to such requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, to reimburse the Special Servicer for any Servicing Advances made by
the Special Servicer, but not previously reimbursed (whether pursuant to Section
3.05(a), this Section 3.19(d) or otherwise) to the Special Servicer, and to pay
the Special Servicer interest thereon at the Reimbursement Rate from the date
made to, but not including, the date of reimbursement. Such reimbursement and
any accompanying payment of interest shall be made within ten (10) days of the
request therefor by wire transfer of immediately available funds to an account
designated by the Special Servicer. Upon the Master Servicer's reimbursement to
the Special Servicer of any Servicing Advance and payment to the Special
Servicer of interest thereon, all in accordance with this Section 3.19(d), the
Master Servicer shall for all purposes of this Agreement be deemed to have made
such Servicing Advance at the same time as the Special Servicer originally made
such Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Advance, together with Advance Interest thereon, at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does not
materially and adversely affect the interests of any Certificateholder and at
least five Business Days prior to the date on which failure to make such
Servicing Advance would (with notice from the Trustee regardless of whether such
notice is actually received) constitute an Event of Default pursuant to Section
7.01(a)(v); provided, however, that the Special Servicer shall have an
obligation to make any Emergency Advance or any other Servicing Advance with
respect to which it would, under the circumstances, be inconsistent with the
Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself and
seeking reimbursement therefor as provided herein); and provided, further, that
the Special Servicer shall, with respect to Specially Serviced Mortgage Loans
and REO Properties, make any Servicing Advance that it fails to timely request
the Master Servicer to make. The Master Servicer shall have the obligation to
make any such Servicing Advance that it is requested by the Special Servicer to
make within five Business Days of the Master Servicer's receipt of such request
and such information and documents as are reasonably necessary for the Master
Servicer to make such Servicing Advance. Subject to the foregoing, the Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it timely requests the Master Servicer to make (regardless of
whether or not the Master Servicer shall make such Servicing Advance), other
than an Emergency Advance or any other Servicing Advance with respect to which
it would, under the circumstances, be inconsistent with the Servicing Standard
for the Special Servicer to request that the Master Servicer make such Servicing
Advance (in lieu of making such Servicing Advance itself and seeking
reimbursement therefor as provided herein). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with Advance Interest thereon, at the same
time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the non-Specially Serviced Mortgage
Loans in the Mortgage Pool during the most recently ended Collection Period, and
(ii) that portion of its aggregate Master Servicing Fee for the related
Collection Period that is, in the case of each and every Mortgage Loan and REO
Loan, calculated at 0.01% per annum, together with the aggregate Prepayment
Interest Excesses received during such Collection Period.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Mortgage Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage Loans
and, where applicable, as to consents to actions of the Master Servicer) and, to
the limited extent permitted below, the Master Servicer (as to non-Specially
Serviced Mortgage Loans) each may, consistent with the Servicing Standard, agree
to any modification, waiver or amendment of any term of, forgive or defer the
payment of interest (including, without limitation, Default Interest) on and
principal of, forgive late payment charges and Prepayment Premiums on, permit
the release, addition or substitution of collateral securing, and/or permit the
release of the Mortgagor on or any guarantor of any Mortgage Loan it is required
to service and administer hereunder (except that any modification, assumption or
waiver of any due-on-encumbrance clause with respect to a Mortgage Loan serviced
and administered by the Master Servicer must also be consented to by the Special
Servicer, which consent shall be granted or withheld in accordance with the
Servicing Standard), without the consent of the Trustee or any
Certificateholder, subject, however, to each of the following limitations,
conditions and restrictions:
(i) Other than as expressly provided in Section 2.03(d) (with
respect to a Mortgage Loan cross-collateralized with a repurchased
Mortgage Loan), Section 3.02 (with respect to Default Charges), Section
3.08 (with respect to due-on-sale and due-on-encumbrance clauses), and
this Section 3.20 (a) (iii) or (v) (with respect to release or
substitution of collateral and a corresponding principal payment), the
Master Servicer shall not agree to any modification, waiver or amendment
of any term of, or take any of the other acts referenced in this Section
3.20(a) with respect to, any Mortgage Loan without the consent of the
Special Servicer (it being understood that (A) the Master Servicer shall
promptly provide the Special Servicer with all information that the
Special Servicer may reasonably request in order to withhold or grant any
such consent, (B) the Special Servicer (for no additional compensation)
shall decide whether to withhold or grant such consent in accordance with
the Servicing Standard, and (C) if any such consent has not been expressly
denied within ten (10) Business Days of the Special Servicer's receipt
from the Master Servicer of all information reasonably requested thereby
in order to make an informed decision, such consent shall be deemed to
have been granted) and neither the Master Servicer nor the Special
Servicer shall agree to any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a) with
respect to, any Mortgage Loan it is required to service and administer
hereunder that would affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder or, in the Master
Servicer's or the Special Servicer's good faith and reasonable judgment,
materially alter the security for such Mortgage Loan or reduce the
likelihood of timely payment of amounts due thereon or, to the extent
required by the REMIC Provisions, materially increase, substitute or
otherwise alter the collateral for the Mortgage Loan (other than the
alteration or construction of improvements thereon) or any guarantee or
credit enhancement contract with respect thereto (other than the
substitution of a similar commercially available credit enhancement
contract); provided, however, the Special Servicer may agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, a Specially
Serviced Mortgage Loan that would have any such effect, but only if a
material default on such Mortgage Loan has occurred or, in the Special
Servicer's reasonable and good faith judgment, a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders (as a collective whole)
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), than would liquidation;
(ii) The Special Servicer may not, in connection with any
particular extension, extend the maturity date of any Specially Serviced
Mortgage Loan beyond (A) the date which is two years prior to the Rated
Final Distribution Date, or (B) the date which is 20 years prior to the
expiration date of any related Ground Lease; provided, however, that with
respect to the requirements of this clause (B) the Special Servicer may in
its discretion agree to extend the maturity beyond a date meeting such
requirement so long as in no event the maturity date of such Mortgage Loan
is extended beyond the date which is 10 years prior to the expiration of
any related Ground Lease;
(iii) Neither the Master Servicer nor the Special Servicer, as
applicable, shall make or permit or consent to, as applicable, any
modification, waiver or amendment of any term of, referenced in this
Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan not
otherwise permitted by this Section 3.20(a) or in Section 3.08 that would
constitute a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b) (neither the Master
Servicer nor the Special Servicer shall be liable for decisions made under
this subsection which were made in good faith and, unless it would
constitute bad faith or negligence to do so, each of the Master Servicer
and the Special Servicer may rely on Opinions of Counsel in making such
decisions);
(iv) The Special Servicer shall not, in the case of Specially
Serviced Mortgage Loans, permit (or, in the case of non-Specially Serviced
Mortgage Loans, consent to the Master Servicer's permitting) any Mortgagor
to add or substitute any collateral for an outstanding Mortgage Loan,
which additional or substitute collateral constitutes real property,
unless (A) the Special Servicer shall have first determined in accordance
with the Servicing Standard, based upon an inspection of the Mortgaged
Property and a Phase I Environmental Assessment (and such additional
environmental testing as the Special Servicer deems necessary and
appropriate) prepared by an Independent Person who regularly conducts
Phase I Environmental Assessments (and such additional environmental
testing), solely at the expense of the Mortgagor, that such additional or
substitute collateral is in compliance with applicable environmental laws
and regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required under
any then applicable environmental laws and/or regulations and (B) in the
case of substitutions of collateral only, the Master Servicer or the
Special Servicer, as the case may be, have obtained written confirmation
from each Rating Agency (solely at the expense of the related Mortgagor)
that such substitution will not result in the downgrade, qualification (if
applicable) or withdrawal of any rating then assigned to any Class of
Certificates;
(v) The Special Servicer shall not, in the case of Specially
Serviced Mortgage Loans, release (or, in the case of non-Specially
Serviced Mortgage Loans, consent to the Master Servicer's releasing) any
collateral securing an outstanding Mortgage Loan (including, without
limitation, as part of a substitution of collateral), except in connection
with a payment in full or a defeasance pursuant to the terms of the
related Mortgage Loan or, subject to the other provisions of this Section
3.20, a discounted payoff of such Mortgage Loan, or except as provided in
Section 3.09(d), or except where Section 3.20(a)(iii) is satisfied and the
Rating Agencies have been notified in writing and (A) either (1) the use
of the collateral to be released will not, in the Master Servicer's or
Special Servicer's, as the case may be, good faith and reasonable
judgment, materially and adversely affect the Net Cash Flow being
generated by or the use of the related Mortgaged Property, or (2) there is
a corresponding principal paydown of such Mortgage Loan in an amount at
least equal to, or a delivery of substitute collateral with an appraised
value at least equal to, the appraised value of the collateral to be
released, (B) the remaining Mortgaged Property and any substitute
collateral is, in the Master Servicer's or Special Servicer's, as the case
may be, good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (C) if the real property collateral that is
being released has an Appraised Value in excess of $3,000,000, or if any
substitution of real property collateral is to be made, the Rating
Agencies have each confirmed in writing that such release and/or
substitution would not result in the downgrade, qualification (if
applicable) or withdrawal of the rating then assigned by Moody's and/or
S&P, as applicable, to any Class of Certificates; and
(vi) Except to the extent the Special Servicer determines that a
modification, waiver or amendment is required for the best interests of
all Certificateholders in accordance with the Servicing Standard, the
Special Servicer shall not agree to any modification, waiver or amendment
of any term of, or take any of the other actions referenced in this
Section 3.20(a), with respect to any Specially Serviced Mortgage Loan if
such action would not be generally consistent with the Servicing Standard.
provided that (1) the limitations, conditions and restrictions set forth in
clauses (i), (ii), (iv), (v) and (vi) above shall not apply to any of the acts
referenced in this Section 3.20(a) in respect of any Mortgage Loan that either
occurs automatically, or results from the exercise of a unilateral option by the
related borrower within the meaning of Treasury Regulations Section
1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in
effect on the Original Closing Date, and (2) notwithstanding clauses (i) through
(vi) above, neither the Master Servicer nor the Special Servicer shall be
required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Mortgagor if in their reasonable and good faith judgment
such opposition would not ultimately prevent the confirmation of such plan or
one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if its analysis and determination that
the modification, waiver, amendment or other action contemplated by Section
3.20(a) is reasonably likely to produce a greater recovery to Certificateholders
on a present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis in good faith by the Special Servicer and the Special Servicer has
complied with the Servicing Standard in ascertaining the pertinent facts. Each
such determination shall be evidenced by an Officer's Certificate to such effect
to be delivered by the Special Servicer to the Trustee. The Special Servicer
shall include with any such Officer's Certificate any supporting documentation
forming the basis for its conclusion.
(c) Any payment of interest which is deferred pursuant to Section
3.20(a) 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 Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to non-Specially Serviced Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans, and,
where applicable, as to consents of actions of the Master Servicer) each may, as
a condition to its granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within the Master Servicer's or Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Mortgagor pay to it, as additional servicing compensation, a
reasonable fee relating to such consent, modification, waiver or indulgence (not
to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for
the additional services performed in connection with such request, together with
any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Mortgage Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.20 and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. In addition, following
the execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver
to the Master Servicer and the Trustee an Officer's Certificate setting forth in
reasonable detail the basis of the determination made by it pursuant to clause
(i) of Section 3.20(a).
(f) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies in order to approve the following
modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents); and (iii) grants of easements that do not materially affect the
use or value of a Mortgaged Property or a borrower's ability to make any
payments with respect to the related Mortgage Loan; provided that any such
modification, waiver or amendment (w) would not in any way affect a payment term
of the Certificates, (x) would not constitute a "significant modification" of
such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and
would not otherwise constitute an Adverse REMIC Event, (y) agreeing to such
modification, waiver or amendment would be consistent with the Servicing
Standard, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
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 give
notice thereof, and deliver the related Servicing File, to the Special Servicer
and shall use its best 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 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 its best efforts to comply with the
preceding sentence within five Business Days of the occurrence of each related
Servicing Transfer Event. The Master Servicer shall deliver to each Class G,
Class H, Class K, Class L, Class M and Class N Certificateholders that shall
have requested a copy of any such notice a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer to the Special Servicer pursuant
to this Section.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan, the Special Servicer shall promptly give notice
thereof, and return the related Servicing File, to the Master Servicer and upon
giving such notice, and returning such Servicing File, to 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.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to Specially Serviced Mortgage Loans, provided that the Master
Servicer shall establish reasonable procedures as to the application of Special
Servicer receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including billing
and collection) with and notices to Mortgagors and similar matters relating to
each Specially Serviced Mortgage Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Mortgage Loan at any time that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee the originals, and to the Master Servicer
copies, of documents contemplated by the definition of "Mortgage File" and
generated while such Mortgage Loan is a Specially Serviced Mortgage Loan, 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 generated while
such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) The Directing Certificateholder will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything in any other Section of this Agreement to the
contrary, in all cases subject to Sections 3.21(e) and 3.21(f), the Special
Servicer will not be permitted to take any of the following actions unless and
until it has notified the Directing Certificateholder in writing and the
Directing Certificateholder has not objected in writing within 10 Business Days
of having been notified thereof and having been provided with all reasonably
requested information with respect thereto (provided that if such written
objection has not been received by the Special Servicer within such 10 Business
Day period, then the Directing Certificateholder's approval will be deemed to
have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of properties
securing such of the Specially Serviced Mortgage Loans as come into and
continue in default;
(ii) any modification, amendment or waiver of a monetary term
(including, without limitation, the timing of payments) or any material
non-monetary term of a Mortgage Loan (other than in accordance with the
terms of such Mortgage Loan);
(iii) any proposed sale of a defaulted Mortgage Loan or REO
Property (other than in connection with the termination of the Trust Fund)
for less than the Purchase Price;
(iv) any acceptance of a discounted payoff;
(v)any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous
Materials located at an REO Property;
(vi) any release of collateral for a Mortgage Loan (other than in
accordance with the terms of, or upon satisfaction of, such Mortgage
Loan);
(vii) any acceptance of substitute or additional collateral for a
Mortgage Loan (other than in accordance with the terms of such Mortgage
Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause; and
(ix) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Directing Certificateholder's response.
In addition, the Directing Certificateholder may direct the Special Servicer to
take, or to refrain from taking, such actions as the Directing Certificateholder
may deem advisable or as to which provision is otherwise made herein, subject to
Section 3.21(e) and 3.21(f). Upon reasonable request, the Special Servicer shall
provide the Directing Certificateholder with any information in the Special
Servicer's possession with respect to such matters, including, without
limitation, its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee,
who shall make it available for review pursuant to Section 8.12(b).
Each of the Master Servicer and the Special Servicer shall notify
the Directing Certificateholder of any release or substitution of collateral for
a Mortgage Loan even if such release or substitution is in accordance with such
Mortgage Loan.
(e) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Directing Certificateholder prior to
acting, and provisions of this Agreement requiring such shall be of no effect,
during the period prior to the initial selection of a Directing
Certificateholder and, if any Directing Certificateholder resigns or is removed,
during the period following such resignation or removal until a replacement is
selected and (ii) no advice, direction or objection from or by the Directing
Certificateholder, as contemplated by Section 3.21(d), may (and the Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that the Special Servicer has determined, in its reasonable, good
faith judgment, would) (A) require or cause the Special Servicer to violate
applicable law, the terms of any Mortgage Loan, any provision of this Agreement
or the REMIC Provisions, including the Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool (C) expose the Trust, the Depositor, the Master
Servicer, the Special Servicer, the Mortgage Loan Seller, the REMIC
Administrator or the Trustee, or any of their respective Affiliates, officers,
directors, employees or agents, to any material claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's responsibilities under
this Agreement.
(f) The Directing Certificateholder 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
judgement; provided, however, that the Directing Certificateholder will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations or duties. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that the Directing Certificateholder may, and is permitted
hereunder to, have special relationships and interests that conflict with those
of Holders of one or more Classes of Certificates, that the Directing
Certificateholder may, and is permitted hereunder to, act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Directing
Certificateholder may, and is permitted hereunder to, take actions that favor
interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other Classes of Certificates, that the Directing
Certificateholder shall not be deemed to have been grossly negligent or
reckless, or to have acted in bad faith or engaged in willful misconduct by
reason of its having acted solely in the interests of the Holders of the
Controlling Class, and the Directing Certificateholder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Directing Certificateholder, any Holder of the
Controlling Class or any directory, officer, employee, agent or principal
thereof for having so acted.
(g) Furthermore, the Special Servicer shall not be obligated to
obtain the approval of the Directing Certificateholder for any actions to be
taken by the Special Servicer with respect to any particular Mortgage Loan if
(i) the Special Servicer has, in accordance with Section 3.21(d), notified the
Directing Certificateholder in writing of the various actions that the Special
Servicer proposes to take with respect to the work-out or liquidation of such
Mortgage Loan and (ii) for 60 days following the first such notice, the
Directing Certificateholder has objected to all of those proposed actions and
has failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer, may each enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of its obligations hereunder, provided that, in each case, the
Sub-Servicing Agreement: (i) is not inconsistent with this Agreement; (ii)
expressly or effectively provides that if the Master Servicer or 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), any successor to the Master Servicer or the Special Servicer, as the
case may be, hereunder (including the Trustee if the Trustee has become such
successor pursuant to Section 7.02) may thereupon either assume all of the
rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or Special Servicer, as the case may be,
under such agreement or, subject to the provisions of Section 3.22(d), terminate
such rights and obligations, in either case without payment of any fee except as
set forth in Section 3.22(d); (iii) in the case of a Sub-Servicing Agreement
entered into by the Master Servicer, expressly or effectively provides that such
agreement shall be suspended with respect to any Mortgage Loan serviced
thereunder at the time such Mortgage Loan becomes a Specially Serviced Mortgage
Loan (but only until such time as such Mortgage Loan becomes a Corrected
Mortgage Loan, to the extent that the Special Servicer is responsible for
servicing such Mortgage Loan) and, except as set forth in Section 3.22(d), the
Sub-Servicer shall not receive or accrue an entitlement to any sub-servicing
compensation in respect of a Specially Serviced Mortgage Loan or an REO Loan;
(iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan; (v) in
the case of a Sub-Servicing Agreement entered into by the Master Servicer,
provides that the related Sub-Servicer shall comply with all reasonable requests
for additional information made by the Master Servicer and, further, provides
that the failure of the related Sub-Servicer to furnish the Master Servicer on a
timely basis with any required reports, statements or other information,
including without limitation, the reports referred to in Section 3.12, either
(A) shall permit the Master Servicer to make necessary inquiries of the related
borrower directly or (B) shall (subject to a cure period not to exceed 60 days)
constitute an event of default thereunder for which the Master Servicer may
terminate such Sub-Servicer without payment of any termination fee (it being
understood that notwithstanding anything to the contrary in this clause (v), the
obligations of a Sub-Servicer in respect of the second sentence of Section
3.12(b) hereof may be limited to the provision of reports as agreed between the
Master Servicer and such Sub-Servicer and response to reasonable inquiries from
the Master Servicer with respect thereto); (vi) does not authorize any
Sub-Servicer to approve a modification of any Mortgage Loan without the approval
of the Master Servicer, in the case of non-Specially Serviced Mortgage Loans or
of the Special Servicer, in the case of Specially Serviced Mortgage Loans; (vii)
imposes no liability whatsoever on the Trustee or the Certificateholders with
respect to anything contained therein; and (viii) provides that the Master
Servicer and the Special Servicer each shall pay the fees of any Sub-Servicer
retained by it in accordance with the respective Subservicing Agreement and, in
any event, from its own funds. References in this Agreement to actions taken or
to be taken by the Master Servicer or the Special Servicer, as the case may be,
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, as the case may be, hereunder to
make 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 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, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.11(f) and/or
Section 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 such party, the Trustee and the Depositor
in writing promptly of the appointment by it of any Sub-Servicer and to the
Directing Certificateholder for any Sub-Servicer appointed by the Special
Servicer, and shall deliver to the Trustee 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; provided that
the foregoing requirements set forth in this sentence shall not apply in the
case of the Sub-Servicing Agreements in effect as of the Original Closing Date
that are listed on Schedule III hereto or in the case of the Sub-Servicers
thereunder.
(b) Each Sub-Servicer (i) shall be authorized to transact business
in the state or states in which the Mortgaged Properties for the Mortgage Loans
it is to service are situated, if and to the extent required by applicable law,
and (ii) to the extent subservicing multifamily loans, shall be an approved
conventional seller/servicer of multifamily mortgage loans for Freddie Mac or
Fannie Mae or a HUD-Approved Servicer.
(c) Each of 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) monitor the performance and
enforce the obligations of its 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 terms of this Agreement, 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 the case may be, in its good faith business judgment, would require were it
the owner of the Mortgage Loans. Promptly upon becoming aware of a default under
any Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify each of the other parties
hereto, and then the Trustee shall provide a copy of such notice to the
Directing Certificateholder and, in accordance with Section 8.12(b), shall, upon
request, provide a copy of such notice to each Class G, Class H, Class K, Class
L, Class M and Class N Certificateholder of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Original Closing Date that are listed on Schedule III hereto, the initial Master
Servicer hereby agrees that it shall not, in its capacity as Master Servicer,
terminate any Sub-Servicer thereunder without cause. In the event of the
resignation, removal or other termination of the initial Master Servicer (or any
successor Master Servicer) hereunder for any reason, the successor to the
initial Master Servicer (or to such successor 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 predecessor 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 and on such terms as the new 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 new Master Servicer) or (iii) to
terminate such Sub-Servicing Agreement without cause, provided that no
Sub-Servicer may be terminated without cause unless it receives Sub-Servicer
Termination Compensation. For purposes hereof, a Sub-Servicer shall receive
"Sub-Servicer Termination Compensation" if any successor Master Servicer elects
to terminate such Sub-Servicer without cause, in which case either of the
following shall occur: (i) such successor Master Servicer shall pay to such
Sub-Servicer a fee (a "Sub-Servicer Termination Fee") in an amount equal to two
times the product of (A) the Primary Servicing Fee Rate in effect under such
Sub-Servicing Agreement at the time of such Sub-Servicer's termination and (B)
the then-current outstanding principal balance of the Mortgage Loans serviced by
such Sub-Servicer or (ii) such successor Master Servicer shall agree to pay such
Sub-Servicer an interest-only strip (the "Termination Strip") out of its related
Master Servicing Fees for each Mortgage Loan serviced by such Sub-Servicer at
the time of such Sub-Servicer's termination (such strip to be calculated in the
same manner as the related Master Servicing Fees, but at a per annum rate equal
to the applicable Primary Servicing Fee Rate minus 0.04%). Any subsequent
successor Master Servicer shall be obligated to pay any such Termination Strip
agreed to by a predecessor Master Servicer. Nothing in the foregoing provisions
of this Section 3.22(d) shall limit the ability of the initial or a successor
Master Servicer to terminate a Sub-Servicer at any time for cause; provided,
however, that the parties hereto understand and agree that the refusal or
failure of a Sub-Servicer to enter into or continue negotiations with a
successor Master Servicer concerning a new Sub-Servicing Agreement shall not
constitute cause for termination. It shall be the corporate obligation (not
reimbursable by the Trust or any of the other parties to this Agreement) of the
Person, who as successor Master Servicer, terminates any Sub-Servicer without
cause, and of its successors and assigns in such capacity (to the extent
contemplated by the second preceding sentence), to pay Sub-Servicer Termination
Compensation to such terminated Sub-Servicer. References in this Section 3.22(d)
to Master Servicer, successor Master Servicer or subsequent successor Master
Servicer shall mean the Trustee, if it is then Master Servicer, successor Master
Servicer or subsequent Master Servicer pursuant to the operation of Section
7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any
time and from time to time replace any existing Special Servicer or any Special
Servicer that has resigned or otherwise ceased to serve as Special Servicer.
Such Majority Certificateholder shall so designate a Person to so serve by the
delivery to the Trustee of a written notice stating such designation, subject to
the approval of the Trustee, which approval shall not be unreasonably withheld.
The Trustee shall, promptly after receiving any such notice, so notify the
Rating Agencies. If the Trustee approves the designated Person (based upon the
servicing qualifications and financial condition of such designated Person) as a
replacement Special Servicer, which approval shall not be unreasonably withheld,
the designated Person shall become the Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then-current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be downgraded, qualified (if
applicable) or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Special Servicer under this Agreement, executed by the
designated Person; and (iii) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer or at the expense of the Majority
Certificateholder that made the designation) to the effect that the designation
of such Person to serve as Special Servicer is in compliance with this Section
3.23, that upon the execution and delivery of the written acceptance referred to
in the immediately preceding clause (ii), 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. The existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that (i)
the terminated or resigned, as applicable, 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, (ii) if it was terminated without cause, it
shall be entitled to a portion of certain Workout Fees thereafter received on
the Corrected Mortgage Loans (but only if and to the extent permitted by Section
3.11(c)), and (iii) it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03, notwithstanding any
such resignation. Such terminated Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of its
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 terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Mortgage Loans
and REO Properties.
SECTION 3.24 Confidentiality.
The Master Servicer and the Special Servicer shall each keep
confidential and shall not disclose to any Person other than each other, the
Depositor, the Trustee, the Rating Agencies and the Directing Certificateholder,
any information which it obtains in its capacity as Master Servicer or Special
Servicer with regard to the Sub-Servicer (other than the name of the
Sub-Servicer) or the Mortgage Loans or any related Mortgagor including, without
limitation, credit information with respect to any such Mortgagor (collectively,
"Confidential Information"), except (i) to the extent that it is appropriate for
the Master Servicer to do so in working with legal counsel, auditors, taxing
authorities or other governmental authorities, (ii) to the extent required by
this Agreement or any Sub-Servicing Agreement, (iii) to the extent such
information is otherwise publicly available, (iv) to the extent such disclosure
is required by law or court order or (v) to the extent such information is
required to be delivered to third parties (including, without limitation,
property inspectors, tax service companies, insurance carriers, and data systems
vendors) in connection with the performance of the Master Servicer's or the
Special Servicer's obligations hereunder. Notwithstanding anything in this
Section 3.24 to the contrary, the Master Servicer, and any Sub-Servicer with the
prior written permission of the Master Servicer, may disseminate general
statistical information relating to the Mortgage Loan portfolio being serviced
(as to any Sub-Servicer, limited to its own subserviced portfolio), so long as
no Mortgagors are identified.
SECTION 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Mortgage Loans; provided however, that the
foregoing restriction shall not be interpreted to prohibit such solicitation by
a division or department of, or an Affiliate of, the Master Servicer or the
Special Servicer if such solicitation occurs incidentally in the normal course
of business and such solicitation is not conducted, in whole or in part, (i) by
an individual engaged at any time in activities relating to the servicing of
Mortgage Loans or (ii) based upon or otherwise with the benefit of proprietary,
non-public information obtained by or through the Master Servicer or Special
Servicer or from documentation relating to the Certificates, including without
limitation any listing of the Mortgage Loans or related Mortgagors or Mortgaged
Properties. Each Sub-Servicing Agreement shall contain a provision identical to
the foregoing with respect to the related Sub-Servicer.
SECTION 3.26 Certain Matters with Respect to Loans Permitting
Defeasance, Franchise Loans and Certain Loans Permitting Additional Debt.
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral in lieu of making a permitted
prepayment, the Master Servicer shall so require defeasance, provided such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8).
(b) The Master Servicer shall enforce the provisions of the related
Mortgage Loan documents that require, as a condition to the exercise by the
Mortgagor of any defeasance rights, that the Mortgagor pay any costs and
expenses associated with such exercise, including rating agencies' fees,
accounting fees and attorneys' fees.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require (to the extent permitted by the related
Mortgage Loan documents) the related Mortgagor to deliver a certification from
the Mortgagor's independent certified public accountants as to the sufficiency
of the related treasury securities, and provide a copy of such certification to
each Rating Agency.
(d) To the extent that the terms of Mortgage Loan documents permit
defeasance, the Master Servicer shall not approve the form and substance of any
required legal opinion(s) in connection with such defeasance unless, subject to
the Servicing Standard, S&P shall have confirmed to it in writing that such
defeasance will not result in the withdrawal, downgrade or qualification (if
applicable) of the rating of any Class of Certificates.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan documents, the Master
Servicer shall require the related Mortgagor to (i) provide replacement
collateral consisting of U.S. government securities within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Note when due, (ii) deliver a
certification from an independent certified public accounting firm certifying
that the replacement collateral is sufficient to make such payments, (iii)
designate a Single-Purpose Entity (if the borrower no longer complies) to assume
the Mortgage Loan and own the collateral and (iv) provide an opinion from
counsel that the Trustee has a perfected security interest in the new
collateral.
(f) To the extent that the terms of Mortgage Loan documents permit
the related Mortgagor, subsequent to the Original Closing Date, to incur
additional debt secured by the Mortgaged Property and condition such incurrence
of additional debt on lender's consent or the execution of a standstill
agreement in form and substance satisfactory to the lender and subject to the
Servicing Standard, the Master Servicer shall not consent or so approve the form
and substance of such standstill agreement unless each Rating Agency shall have
confirmed to it in writing that the form and substance of such standstill
agreement is satisfactory to such Rating Agency and that the execution and
delivery of such a standstill agreement with respect to such additional debt
will not result in the downgrade, withdrawal or qualification (if applicable) of
any Class of Certificates.
(g) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more, constitutes 2% or more of the then current
principal balance of the Mortgage Pool, or is one of the ten (10) largest
Mortgage Loans in the Mortgage Pool as of the Original Cut-off Date, and (ii)
the terms of the related Mortgage Loan documents require the consent of the
lender for the transfer of an Over 49% Interest in the related borrower or in
any special purpose entity owning an equity interest in such borrower, or any
Over 49% Interest in any entity owning an Over 49% Interest in any borrower or
in any special purpose entity owning an equity interest in such borrower, the
Master Servicer shall not so consent to such a transfer unless each Rating
Agency shall have confirmed to it in writing that such transfer, if consummated,
would not result in the downgrade, qualification (if applicable) or withdrawal
of the rating of any Class of Certificates. For purposes of this clause (h), an
"Over 49% Interest" in any entity refers to any interest representing over 49%
of the equity ownership interests in such entity.
(h) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more, constitutes 2% or more of the then current
principal balance of the Mortgage Pool, or is one of the ten (10) largest
Mortgage Loans in the Mortgage Pool as of the Original Cut-off Date, and (ii)
the terms of the related Mortgage Loan documents require the consent of the
lender in order for the related Mortgagor to change the manager of the related
Mortgaged Property, the Master Servicer shall not so consent to such a change in
management unless each Rating Agency shall have confirmed to it in writing that
such a change in management, if effected, would not result in the withdrawal,
downgrade or qualification (if applicable) of the rating of any Class of
Certificate.
SECTION 3.27 [RESERVED]
SECTION 3.28 Maintenance of Portfolio Mortgage Loan
Environmental Policy.
Each of the Master Servicer and the Special Servicer hereby agrees
to act in accordance with the Servicing Standard to abide by the terms and
conditions precedent to payment of claims under the Environmental Policy and to
act in accordance with the Servicing Standard to take all such action as may be
required to comply with the terms and provisions of such policy in order to
maintain, in full force and effect, the Environmental Policy. In addition, each
of the Master Servicer and the Special Servicer hereby agrees that it will act
in accordance with the Servicing Standard to take any and all actions required
under the Environmental Policy in connection with any claim, including, without
limitation (i) complying with the protocol for estimation of cleanup costs as
set forth in the Environmental Policy and (ii) timely presenting of proof of
loss containing all required information.
The Environmental Policy may be amended from time to time by the
mutual agreement of the parties thereto, provided that such amendment shall not
result in a downgrade, qualification or withdrawal, as applicable, of any rating
then assigned to any Class of Certificates by any Rating Agency (as evidenced by
written confirmation to such effect from each Rating Agency obtained by or
delivered to the Trustee).
As to a Portfolio Mortgage Loan, upon the occurrence of either a
monetary or non-monetary default, which in the Master Servicer's or the Special
Servicer's reasonable judgment (subject to the Servicing Standard) materially
and adversely affects the Portfolio Mortgage Loan or Mortgaged Property, beyond
any applicable grace or cure period, or upon notice or discovery that a
Mortgaged Property has suffered a "pollution event" ("Pollution Event") as
described in the Environmental Policy, the Master Servicer or the Special
Servicer shall obtain, or shall cause the related Sub-Servicer to obtain, within
three (3) Business Days following the Special Servicer's, Master Servicer's or
Sub-Servicer's discovery or notification of such a default or Pollution Event,
with a copy to the Special Servicer or the Master Servicer, as the case may be,
and to the Directing Certificateholder, the following information, as
applicable: (i) the nature of any default and/or Pollution Event, when each
first occurred, when the Special Servicer, the Master Servicer or Sub-Servicer
became aware of each, and whether any default or Pollution Event is continuing,
and as for each default, provide each defaulted dollar payment amount (if any),
and quote and name each affected document, section and paragraph containing or
directly quoting the default language, and as for each Pollution Event, provide
an address sufficient to describe both the location of the affected Mortgaged
Property and the location of the Pollution Event; (ii) whether the Master
Servicer or the Special Servicer has a good faith belief that the default will
be cured and/or each Pollution Event will be eradicated or cleaned-up within a
certain time period, and if so: (x) detail the underlying facts and the nature
of such belief; (y) indicate the likely cure/eradication/clean-up timeframe in
days. The Master Servicer or the Special Servicer shall obtain, or shall cause
the related Sub-Servicer to obtain, copies of the following documents pertaining
to the related Mortgaged Property: each Environmental Site Inspection, report
and/or analysis; each appraisal narrative regarding the historical use; and each
property inspection; which shall be given to the Directing Certificateholder
upon request, and shall be used by the Master Servicer or the Special Servicer
to create or cause to create an environmental insurance protocol plan proposal
(an "Environmental Insurance Protocol"). In addition, the Master Servicer or the
Special Servicer shall review and comply with all terms and conditions of the
Environmental Policy, including giving specific and timely notice thereunder.
Each Environmental Insurance Protocol shall require the Master
Servicer or the Special Servicer to order, at the Trust Fund's expense, a Phase
I Environmental Site Assessment Report within ten (10) Business Days of
discovery or notice of a default or a Pollution Event. All related out-of-pocket
expenses related to this process incurred by the Sub-Servicer, the Special
Servicer and the Master Servicer shall be a Trust Fund expense.
Any and all amounts collected by the Master Servicer, the Special
Servicer or the Trustee or, except with respect to Portfolio Mortgage Loans
which it has already repurchased hereunder, the Portfolio Mortgage Loan Seller,
under the Environmental Policy shall be immediately deposited in the Certificate
Account. Costs and expenses incurred by the Master Servicer or the Special
Servicer in connection with this Section 3.28 shall be reimbursable out of the
Certificate Account as a Trust Fund expense. Neither the Master Servicer nor the
Special Servicer shall be required to incur any cost or expense for premiums for
such Environmental Policy.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates.
(a) (i) On each Distribution Date, amounts held in the Distribution
Account shall be withdrawn (to the extent of the Available Distribution Amount,
the "REMIC I Distribution Amount") in the case of all Classes of REMIC I Regular
Interests and distributed on the REMIC I Regular Interests as set forth in
Section 4.01(a)(ii) herein. Thereafter, such amounts shall be considered to be
held in the REMIC II Distribution Account and distributed on the REMIC II
Uncertificated Regular Interests as set forth in Section 4.01(a)(ii) and on the
Unaffected REMIC II Certificates as set forth in Section 4.01(b) (to the extent
of the Available Distribution Amount, the "REMIC II Distribution Amount"). Such
amounts distributed on the Class MG, Class MH, Class MJ, Class MK and Class MX
Uncertificated Interests shall be considered to be held in the REMIC III
Distribution Account until distributed to the Holders of the Class G, Class H
and Class K Certificates as set forth in Section 4.01(b), to the Trustee for the
benefit of the Class UX Uncertificated Interest as set forth in Section
4.01(a)(ii) and to the Holders of the Class R-III Certificates as set forth in
Section 4.01(a)(v) (to the extent of such portion of the Available Distribution
Amount, the "REMIC III Distribution Amount"). Such amounts distributed on the
Class MA-1, Class MA-2, Class MA-3, Class MA-4, Class MA-1C and Class MA-2C
Uncertificated Interests shall be considered to be held in the REMIC IIIU
Distribution Account until distributed to the Trustee for the benefit of the
Class UA-1A, Class UA-2A, Class UA-1B, Class UA-2B and Class UA-3B
Uncertificated Interests as set forth in Section 4.01(a)(ii) and to the Holders
of the Class R-IIIU Certificates as set forth in Section 4.01(a)(vi) (to the
extent such portion of the Available Distribution Amount, the "REMIC IIIU
Distribution Amount"). Such amounts distributed on the Class UA-1A, Class UA-2A,
Class UA-1B, Class UA-2B and Class UA-3B Interests, together with the amounts
distributed on the Class MB, Class MC and Class MD Uncertificated Interests and
on the Class UX Uncertificated Interest as described in the second and third
sentences, respectively, of this Section 4.01(a)(i), shall be considered to be
held in the REMIC IV Distribution Account until distributed to the Holders of
the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B, Class B, Class
C, Class D and Class X Certificates and the Class R-IV Certificates as set forth
in Section 4.01(b) (to the extent of such portion of the Available Distribution
Amount, the "REMIC IV Distribution Amount").
(ii) The allocation and reimbursement of Realized Losses and
Additional Trust Fund Expenses and timing and amount of principal and
interest distributions (1) on each REMIC I Regular Interest will be
identical to such principal and interest amounts, allocations,
reimbursements and timing and amount of distributions on the Corresponding
REMIC II Uncertificated Regular Interests (in the case of the Class LA-1,
Class LA-2, Class LA-3, Class LA-4, Class LA-1C, Class LA-2C, Class LB,
Class LC, Class LD, Class LG, Class LH, Class LJ and Class LK
Uncertificated Interests) or the Class LE, Class LF, Class LL, Class LM,
Class LN Uncertificated Interest taken together with their related
Components of the Class MX Uncertificated Interest (2) on each of the
Class MH and Class MJ Uncertificated Interests will be identical to such
principal and interest amounts, allocations, reimbursements and timing and
amount of distributions on Class H Certificates (in the case of the Class
MH and Class MJ Uncertificated Interests, allocated between them as
specified in the definition of "Uncertificated Principal Balance" and in
Section 4.01(b) of this Agreement) taken together with their related
components of the Class UX Uncertificated Interest (3) on each of the
Class MG, Class MK and Class MX Uncertificated Interests will be identical
to such principal amounts, allocations, reimbursements and timing and
amount of distributions on the Class G Certificates (taken together with
the Class G Component), on the Class K Certificates (taken together on the
Class K Component, and on the Class MX Component (in the case of the Class
MX Uncertificated Interest) of the Class UX Uncertificated Interest,
provided that such amounts for the Class UX Uncertificated Interest will
be allocated among the Class MG Component, Class MH Component, Class MJ
Component and Class MK Component of the Class MX Uncertificated Interest
based on their respective entitlements, (4) on each of the Class MA-1,
Class MA-2, Class MA-3, Class MA-4, Class MA-1C, and Class MA-2C
Uncertificated Interests will be identical to such principal and interest
amounts, allocations, reimbursements and timing and amount of distribution
in the aggregate on the corresponding REMIC IIIU Uncertificated Regular
Interests, allocated among them as specified in the definition of
"Uncertificated Principal Balance" and (5) on each of the Class UA-1,
Class UA-2, Class UA-3, Class UA-4, Class UA-1C, Class UA-2C, Class MB,
Class MC and Class MD Uncertificated Interests will be identical to such
principal amounts, allocations, reimbursements and timing and amount of
distributions on the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class
A-3B, Class B, Class C and Class D Certificates, respectively taken
together with their related Components of the Class X Certificates.
(iii) Any amount that remains in the REMIC I Distribution Account
on each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Sections 4.01(a)(i) and 4.01(c)(v) shall be distributed to the
Holders of the Class R-I Certificates (but only to the extent of the
Available Distribution Amount for such Distribution Date remaining in the
Distribution Account, if any).
(iv) Any amount that remains in the REMIC II Distribution
Account on each Distribution Date after distribution of the REMIC II
Distribution Amount and Prepayment Premiums allocable to the REMIC II
Uncertificated Regular Interests pursuant to Sections 4.01(a)(i) and
Section 4.01(c)(v) and distributions on the Unaffected REMIC II
Certificates pursuant to Section 4.01(b) and Sections 4.01(c)(i) and (ii)
shall be distributed to the Holders of the Class R-II Certificates (but
only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the REMIC II Distribution Account, if any).
(v) Any amount that remains in the REMIC III Distribution
Account on each Distribution Date after distribution of the REMIC III
Distribution Amount allocable to the REMIC III Uncertificated Regular
Interest pursuant to Sections 4.01(a)(i) and the Unaffected REMIC III
Certificates pursuant to Section 4.01(b) shall be distributed to the
Holders of the Class R-III Certificates (but only to the extent of the
Available Distribution Amount for such Distribution Date remaining in the
REMIC III Distribution Account, if any).
(vi) any amount that remains in the REMIC IIIU Distribution
Account on each Distribution Date after distribution of the REMIC IIIU
Distribution Amount and Prepayment Premiums allocable to the REMIC IIIU
Interests pursuant to Section 4.01(a)(i) and Section 4.01(c)(v) shall be
distributed to the Holders of the Class R-IIIU Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the REMIC IIIU Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall make
distributions to the Certificates in the following priority (deemed, in the case
of the Class X, Class A-1A, Class A-2A, Class A-1B, Class A-2B and Class A-3B,
Class B, Class C, Class D and Class R-IV Certificates, to be made from the REMIC
IV Distribution Account, in the case of the Unaffected REMIC III Certificates to
be made from the REMIC III Distribution Account, and in the case of the
Unaffected REMIC II Certificates, to be made from the REMIC II Distribution
Account):
(i) concurrently from the Available Distribution Amount, pro
rata, to the Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B
and Class X Certificates, up to an amount equal to, and pro rata as among
such Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to the Class A-1A and Class A-2A Certificates, in reduction
of the Certificate Principal Balances thereof until the Certificate
Principal Balances thereof have been reduced to zero, an amount up to the
Group A Senior Certificate Principal Distribution Amount for such
Distribution Date;
(iii) to the Class A Certificates, in reduction of the
Certificate Principal Balances thereof, an amount up to the remaining
portion of the Principal Distribution Amount for such Distribution Date
remaining after the distribution described in clause (ii), in the
following order of priority:
first, to the Class A-1B Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
second, to the Class A-2B Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class A-3B Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class A-1A Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class A-2A Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(iv) to reimburse the holders of the Class A Certificates, up to
an amount equal to, and pro rata as among such Classes in accordance with,
the respective amounts of Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to such Classes of Certificates and
for which no reimbursement has previously been paid;
(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) if the Class Principal Balances of the Class A 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 remaining Principal Distribution
Amount for such Distribution Date;
(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, that were previously
allocated to the Class Principal Balance of the Class B Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(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) if the Class Principal Balances of the Class A and Class B
Certificates have 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 remaining
Principal Distribution Amount for such Distribution Date;
(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, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(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 such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xii) if the Class Principal Balances of the Class A, Class B and
Class C Certificates have 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 remaining
Principal Distribution Amount for such Distribution Date;
(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, that were previously
allocated to the Class Principal Balance of the Class D Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(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 such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xv) if the Class Principal Balances of the Class A, Class B,
Class C and Class D Certificates have 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 remaining Principal Distribution Amount for such
Distribution Date;
(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, that were previously
allocated to the Class Principal Balance of the Class E Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(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 such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xviii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D and Class E Certificates have 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 remaining Principal Distribution Amount for such
Distribution Date;
(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, that were previously
allocated to the Class Principal Balance of the Class F Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(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 such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxi) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E and Class F Certificates have 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 remaining Principal Distribution
Amount for such Distribution Date;
(xxii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class G Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxiii) to distributions of interest to the Holders of the Class
H Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Classes of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxiv) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F and Class G Certificates have 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 Balances
of the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxv) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balances of the Class J Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxvi) to distributions of interest to the Holders of the Class K
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;
(xxvii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, and Class H Certificates have
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 remaining Principal Distribution
Amount for such Distribution Date;
(xxviii) 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, that were previously
allocated to the Class Principal Balance of the Class K Certificates and
that remain unreimbursed immediately prior to such Distribution Date; and
(xxix) to distributions of interest to the Holders of the Class L
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;
(xxx) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class K
Certificates have 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 remaining
Principal Distribution Amount for such Distribution Date;
(xxxi) 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, that were previously
allocated to the Class Principal Balance of the Class L Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxii) to distributions of interest to the Holders of the Class
M 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;
(xxxiii) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class K and Class L
Certificates have 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 remaining
Principal Distribution Amount for such Distribution Date;
(xxxiv) 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, that were previously
allocated to the Class Principal Balance of the Class M Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxv) to distributions of interest to the Holders of the Class N
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;
(xxxvi) if the Class Principal Balances of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class K, Class L,
Class M Certificates have 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 remaining
Principal Distribution Amount for such Distribution Date;
(xxxvii) 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, that were previously
allocated to the Class Principal Balance of the Class M Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxviii)to distributions to the Holders of the Class R-IV
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 (xxi) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
and (iii) above, will be so made to the Holders of the respective Classes of
Class A Certificates, subject to available funds, 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 date; and provided,
further, that, on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (vi), (ix), (xii), (xv), (xviii), (xxi), (xxiv),
(xxvii), (xxx), (xxxiii), and (xxxvi) above with respect to any Class of
Sequential Pay Certificates, will be so made to the Holders thereof, subject to
available funds, up to an amount equal to the entire then outstanding Class
Principal Balance of such Class of Certificates, and without regard to the
Principal Distribution Amount for such date. References to "remaining Principal
Distribution Amount" in clause (ii) above, in connection with payments of
principal to be made to the Holders of any Class of Class A Certificates, shall
be to the Principal Distribution Amount for such Distribution Date, net of any
distributions of principal made in respect thereof to the Holders of each other
Class of Class A Certificates, if any, that pursuant to clause (ii) above has an
earlier right to payment with respect thereto. References to "remaining
Principal Distribution Amount" in any of clauses (vi), (ix), (xii), (xv),
(xviii), (xxi), (xxiv), (xxvii), (xxx), (xxxiii) and (xxxvi) above, in
connection with the payments of principal to be made to the Holders of any Class
of Sequential Pay Certificates, shall be to the Principal Distribution Amount
for such Distribution Date, net of any payments of principal made in respect
thereof to the Holders of each other Class of Sequential Pay Certificates that
has a higher Payment Priority.
(c)
(i) On each Distribution Date, Prepayment Premiums collected on
the Group A Mortgage Loans during the related Prepayment Period (including
for this purpose any amount paid by the Mortgage Loan Seller in respect of
the Movie Theater Mortgage Loan in accordance with Section 4.01(c)(vi))
will be distributed by the Trustee to the following Classes of
Certificates: to the Class A-1A, Class A-2A, Class B, Class C Class D,
Class E, and Class F Certificates, in an amount equal to the product of
(a) a fraction whose numerator is the amount distributed as principal to
such Class on such Distribution Date, and whose denominator is the total
amount distributed as principal to the Class A-1A, Class A-2A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class K, Class L,
Class M and Class N Certificates on such Distribution Date, (b) the Base
Interest Fraction for the related principal payment on such Class of
Certificates, and (c) the aggregate amount of Prepayment Premiums relating
to the Mortgage Loans collected on such principal prepayments during the
related Prepayment Period. Any Prepayment Premiums relating to the Group A
Mortgage Loans collected during the related Prepayment Period remaining
after such distributions will be distributed to the holders of the Class X
Certificates.
(ii) On each Distribution Date, Prepayment Premiums collected on
the Group B Mortgage Loans during the related Collection Period will be
distributed by the Trustee to the Class A-1B, Class A-2B and Class A-3B
Certificates, in an amount equal to the product of (a) a fraction, not
greater than 1, whose numerator is the amount distributed as principal to
such Class on such Distribution Date, and whose denominator is the total
amount distributed as principal on such Distribution Date from the Group B
Mortgage Loans, (b) the Base Interest Fraction for the related principal
prepayment and such Class of Certificates, and (c) the aggregate amount of
Prepayment Premiums relating to the Group B Mortgage Loans collected on
such principal prepayments during the related Prepayment Period. Any
Prepayment Premiums relating to the Group B Mortgage Loans collected
during the related Prepayment Period remaining after such distributions
will be distributed to the holders of the Class X Certificates.
(iii) The "Base Interest Fraction" with respect to any principal
prepayment on any Mortgage Loan and with respect to any Class of Offered
Certificates is a fraction (a) whose numerator is the amount, if any, by
which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii)
the discount rate used in accordance with the related Mortgage Loan
documents in calculating the Prepayment Premium with respect to such
Principal Prepayment and (b) whose denominator is the amount, if any, by
which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents
in calculating the yield maintenance charge with respect to such principal
prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y)
the Pass-Through rate described in the preceding sentence, then the Base
Interest Fraction will equal zero.
(iv) No Prepayment Premiums will be distributed to the holders of
the Class G, Class H, Class K, Class L, Class M or Class N Certificates.
After the Certificate Principal Balances of the Class A-1A, Class A-2A,
Class B, Class C, Class D, Class E and Class F Certificates have been
reduced to zero, all Prepayment Premiums and yield maintenance charges
with respect to the Group A Mortgage Loans shall be distributed to the
holders of the Class X Certificates. After the Certificate Principal
Balance of the Class A-1B, Class A-2B, and Class A-3B Certificates have
been reduced to zero, all Prepayment Premiums with respect to the Group B
Mortgage Loans shall be distributed to holders of the Class X
Certificates.
(v) All distributions of Prepayment Premiums made in respect of
the respective Classes of Regular Certificates on each Distribution Date
pursuant to Sections 4.01(c)(i) and 4.01(c)(ii) (excluding for this
purpose any amount paid by the Mortgage Loan Seller in respect of the
Movie Theater Mortgage Loan in accordance with 4.01(c)(vi)), which amount
shall be deemed distributed in accordance with such Section 4.01(c)(vi),
shall first be deemed to be distributed from REMIC I to REMIC II in
respect of the REMIC I Regular Interests, pro rata based upon the amount
of principal distributed in respect of each Class of REMIC I Regular
Interests for such Distribution Date pursuant to Section 4.01(a)(ii)
above. The amount of Prepayment Premiums distributable (A) on the Class
A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B, Class B, Class C and
Class D Certificates shall be distributed, (1) from REMIC II to REMIC IIIU
in respect of the Class MA-1, Class MA-2, Class MA-3, Class MA-4, Class
MA-1C and Class MA-2C Uncertificated Interests, (2) from REMIC II to REMIC
IV in respect of the Class MB, Class MC and Class MD Uncertificated
Interests, (3) from REMIC IIIU to REMIC IV in respect of the Class UA-1A,
Class UA-2A, Class UA-1B, Class UA-2B and Class UA-3B Uncertificated
Interests, in each case based on the amount distributable on the
corresponding Certificates; and (B) on the Class X Certificates the amount
of Prepayment Premiums remaining, after allocations to the Class A-1A,
Class A-2A, Class A-1B, Class A-2B, Class A-3B and Class B, Class C, Class
D, Class E and Class F Certificates in accordance with Sections 4.01(c)(i)
and 4.01(c)(ii) (which remaining amount shall be the entire amount so
distributable after the Class Principal Balances of such Classes of
Certificates have been reduced to zero).
(vi) In the event of a payment default under Mortgage Loan No.
51828 (the "Movie Theater Mortgage Loan"), the Mortgage Loan Seller agrees
to pay: (1) to the Trust, for the benefit of the holders of the Class
A-1A, A-2A, Class X, Class B, Class C, Class D, Class E and Class F
Certificates that are then entitled to receive a distribution of
Prepayment Premiums pursuant to Section 4.01(c)(i) above, an amount equal
to any Prepayment Premiums due, but not received, on the Movie Theater
Mortgage Loan and (2) to reimburse the holders of the Registered
Certificates after any payment required by the above Clause (1) after the
Certificate Principal Balances of the Class G, Class H, Class K, Class L,
Class M and Class N Certificates have been reduced to zero, for any loss
then realized and attributable due to the liquidation of the Movie Theater
Mortgage Loan; provided, however, (a) the aggregate amount payable by the
Mortgage Loan Seller pursuant to this sentence shall in no event exceed
$2,189,591.00 (which dollar amount equals 10% of the aggregate principal
balance of the Movie Theater Loan as of August 1, 2000); and (b) the
indemnification referenced this Section 4.01(c)(vi) will expire upon the
earlier of (x) the date which is three years after the date the property
securing the Movie Theater Loan is no longer included in the bankruptcy
estate of the related borrower and (y) the date that the Mortgaged
Property is leased to a tenant having a rating of "B" or better or the
equivalent from a nationally recognized rating agency. The Trustee shall
distribute any such payment received from the Mortgage Loan Seller
pursuant to the first sentence of this Section 4.01(c)(vi) to the Classes
of such Certificates then so entitled in the same manner as provided in
Section 4.01(c)(i). Notwithstanding anything to the contrary contained in
Section 4.01(c)(v) above, any amount so paid by the Mortgage Loan Seller
and distributed by the Trustee to the holders of any of the Class A-1A,
Class A-2A, Class A-1B, Class A-2B, Class A-3B, Class B, Class C, Class D
or Class X Certificates shall be deemed to have been deposited in the
REMIC IV Distribution Account and distributed exclusively from REMIC IV,
and any amount so paid and distributed to the holders of any of the Class
E or Class F Certificates shall be deemed to have been deposited in the
REMIC II Distribution Account and distributed exclusively from REMIC II.
(d) 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 of
Certificates 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 Trustee with written 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 without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. 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 Registrar or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their 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. 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 a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the Corporate
Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-IV Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
SECTION 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first-class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Regular
Certificates and to the Special Servicer and to the Rating Agencies a statement
(a "Distribution Date Statement"), substantially in the form contemplated on
pages C-1 through C-23 of the Prospectus Supplement, as to the distributions
made on such Distribution Date setting forth:
(i) the amount of the distribution, if any, 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, if any, on such Distribution
Date to the Holders of each Class of Regular Certificates allocable to
Distributable Certificate Interest and the amount of the distribution, if
any, on such Distribution Date to the Holders of each Class of Regular
Certificates allocable to Prepayment Premiums;
(iii) the Available Distribution Amount for such Distribution
Date;
(iv) the aggregate amount of P&I Advances made in respect of the
immediately preceding Determination Date;
(v) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Determination Date;
(vii) as of the Determination Date for the related Distribution
Date, the number, aggregate unpaid principal balance and specific
identification (by loan number) of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, and (D)
current but specially serviced or in foreclosure but not an REO Property;
(viii) with respect to any REO Property included in the Trust
Fund as of the end of the Collection Period for such Distribution Date,
the principal balance of the Mortgage Loan as of the date such Mortgage
Loan became delinquent;
(ix) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular Certificates for
such Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of Regular Certificates on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xi) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xii) the Pass-Through Rate for each Class of Regular
Certificates for such Distribution Date;
(xiii) the Principal Distribution Amount for such Distribution
Date, separately identifying the respective components of such amount;
(xiv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Regular Certificates 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;
(xvi) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
(xvii) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period; and
(xviii) a brief description of any material, waiver, modification
or amendment of any Mortgage Loan entered into by the Master Servicer or
Special Servicer pursuant to Section 3.20 during the related Collection
Period;
(xix) current, reimbursed and outstanding Advances;
(xx) current and cumulative Prepayments;
(xxi) the number and aggregate principal balance of Mortgage
Loans as to which (A) foreclosure proceedings have been commenced as to
the related Mortgaged Property, and (B) bankruptcy proceedings have been
commenced as to the related Mortgagor; and
(xxii) the ratings from all Rating Agencies for all classes of
Certificates.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Original Closing Date)
shall be made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xvi)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible 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).
On each Distribution Date, the Trustee shall also provide or make
available, either in electronic format or by first-class mail, to such
Certificateholders and Certificate Owners and to the Rating Agencies, a report
(based on information received from the Master Servicer and Special Servicer)
containing, as and to the extent received from the Master Servicer and Special
Servicer, information regarding the Mortgage Pool as of the close of business on
the related Determination Date, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Annex A to
the Prospectus Supplement (calculated, where applicable, on the basis of the
most recent relevant information provided by the Mortgagors to the Master
Servicer or the Special Servicer and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee) and such information shall be
presented in a loan-by-loan and tabular format substantially similar to the
formats utilized in Annex A to the Prospectus Supplement (provided that no
information will be provided as to any repair and replacement or other cash
reserve and the only financial information to be reported on an ongoing basis
will be the actual expenses, actual revenues and actual Net Cash Flow for the
respective Mortgaged Properties and a Debt Service Coverage Ratio calculated on
the basis thereof).
In addition, the Trustee shall provide or make available, either in
electronic format or by first-class mail, to such Certificateholders and
Certificate Owners and to the Rating Agencies, at the same time that the
Distribution Date Statement is delivered thereto, each (i) Delinquent Loan
Status Report, (ii) REO Status Report, (iii) Historical Loan Modification
Report, (iv) Special Servicer Loan Status Report (it being understood that a
separate Special Servicer Loan Status Report shall not be necessary if the
equivalent information is provided in the foregoing or other reports delivered
by the Master Servicer), (v) Historical Loss Estimate Report, and (vi) Servicer
Watch List (such reports, together with the CMSA Loan Periodic Update File, the
CMSA Financial File, and the CMSA Property File, the "Servicer Reports") that
has been received by the Trustee since the prior Distribution Date.
Additionally, the Trustee shall also be required to provide or make available,
either in electronic format or by first-class mail, the Servicer Reports to any
potential investor in the Certificates who requests such reports in writing.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i)
and (ii) above of the description of Distribution Date Statement, aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I, Class R-II, Class R-III, Class R-IIIU and Class
R-IV Certificates the related Form 1066 and shall furnish their respective
Schedules Q thereto at the times required by the Code or the IRS, and shall
provide from time to time such information and computations with respect to the
entries on such forms as any Holder of the Class R-I, Class R-II, Class R-III,
Class R-IIIU and Class R-IV Certificates may reasonably request.
The Trustee shall make available each month, to any interested
party, the Distribution Date Statement, via the Trustee's Website and fax on
demand service. The Trustee's fax on demand service may be accessed by calling
(301) 815-6610. In addition, the Trustee shall also make (i) the Servicer
Reports, (ii) the CMSA Loan Set Up File, (iii) the CMSA Bond Level File, and
(iv) the CMSA Collateral File available each month to any Certificateholder, any
Certificate owner, the Rating Agencies or any other interested party via the
Trustee's Website. In addition the Trustee shall make available, as a
convenience for interested parties (and not in furtherance of the distribution
of the Base Prospectus and Prospectus Supplement under the securities laws),
this Agreement, the Base Prospectus and the Prospectus Supplement via the
Trustee's Website. The Trustee shall make no representations or warranties as to
the accuracy or completeness of such documents and will assume no responsibility
therefor. For assistance with the above-mentioned services, interested parties
may call (301) 815-6600.
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 my affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party thereto).
In connection with providing access to the Trustee's Website, the
Trustee may require online registration and the acceptance of a disclaimer.
Neither the Trustee nor the Master Servicer nor the Special Servicer shall be
liable for the dissemination of information in accordance herewith.
(b) At or before 1:00 p.m. (New York City time) on the second
Business Day prior to the related Distribution Date (the "Master Servicer
Reporting Date"), beginning in April, 2000, unless otherwise stated below the
Master Servicer shall deliver or cause to be delivered to the Trustee, the
Directing Certificateholder and to the Special Servicer and, to each Rating
Agency (which delivery to the Special Servicer, the Directing Certificateholder
and the Rating Agencies may be accomplished by making such information available
on the Master Servicer's Internet Website), in writing and on a
computer-readable medium, in form reasonably acceptable to the Trustee,
including, without limitation, on a loan-by-loan basis, the following reports
(together with the CMSA Loan Periodic Update File, the CMSA Financial File
(beginning in May, 2000), and the CMSA Property File, the "Servicer Reports"):
(1) a Delinquent Loan Status Report, (2) an REO Status Report, (3) a Historical
Loan Modification Report, (4) a Historical Loss Estimate Report, and (5) the
Special Servicer Loan Status Report most recently received by the Master
Servicer (it being understood that a separate Special Servicer Loan Status
Report shall not be necessary if the equivalent information has been included in
the foregoing or other reports delivered by the Master Servicer) and (6) the
Servicer Watch List.
At or before 1:00 p.m. (New York City time) on the third Business
Day prior to related Distribution Date, beginning in January, 2000, the Master
Servicer shall deliver to the Trustee, the Special Servicer, the Directing
Certificateholder and each Rating Agency (which delivery to the Special
Servicer, the Directing Certificateholder and the Rating Agencies may be
accomplished by making such information available on the Master Servicer's
Internet Website) a single report, in electronic format, setting forth the
information specified in clauses (i) through (xv) below on a loan-by-loan basis
(the items specified in clause (xiii) below to be reported once per calendar
quarter, and the amounts and allocations of payments, collections, fees and
expenses with respect to Specially Serviced Mortgage Loans and REO Properties to
be based upon the report to be delivered by the Special Servicer to the Master
Servicer one (1) Business Day after the related Determination Date, as required
by Section 4.02(c) below) (the "CMSA Loan Periodic Update File"):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in respect
of the Mortgage Loans and any REO Loans, separately identifying the
aggregate amount of any Principal Prepayments included therein, and (if
different) the Principal Distribution Amount for the immediately
succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant to
Section 4.03 of this Agreement that were made in respect of the
immediately preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special Servicing
Fees, Workout Fees, Liquidation Fees and other servicing compensation with
respect to the Mortgage Pool for the Collection Period ending on such
Determination Date, specifying the items and amounts of such other
servicing compensation payable to the Master Servicer, the Special
Servicer and any Sub-Servicers retained by each;
(v) the number and aggregate unpaid principal balance as of the
close of business on the last day of the most recently ended calendar
month of Mortgage Loans in the Mortgage Pool (A) remaining outstanding,
(B) delinquent 30-59 days, (C) delinquent 60-89 days, (D) delinquent 90
days or more but not in foreclosure and (E) in foreclosure; and the number
and aggregate unpaid principal balance as of the close of business on such
Determination Date of Mortgage Loans in the Mortgage Pool (x) as to which
the related Mortgaged Property has become REO Property during the
Collection Period ending on such Determination Date, (y) as to which the
related Mortgaged Property was REO Property as of the end of such
Collection Period and (z) the terms of which have been modified during
such Collection Period pursuant to this Agreement;
(vi) the loan number and the unpaid principal balance as of the
close of business on such Determination Date of each Specially Serviced
Mortgage Loan and each other Defaulted Mortgage Loan;
(vii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on such Determination Date, the
loan number of the related Mortgage Loan, the appraised value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received on such REO Property during the related Collection Period and the
portion thereof included in the Available Distribution Amount for the
immediately succeeding Distribution Date;
(viii) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the Collection Period
ending on such Determination Date, the loan number of such Mortgage Loan
and the Stated Principal Balance of such Mortgage Loan as of the related
Acquisition Date;
(ix) with respect to any Mortgage Loan or REO Property as to
which a Final Recovery Determination was made by the Master Servicer
during the Collection Period ending on such Determination Date, the loan
number of such Mortgage Loan or, in the case of an REO Property, of the
related Mortgage Loan, the amount of Liquidation Proceeds and/or other
amounts, if any, received thereon during such Collection Period and the
portion thereof included in the Available Distribution Amount for the
immediately succeeding Distribution Date, and any resulting Realized Loss;
(x) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(xi) the aggregate amount of Realized Losses on the Mortgage Pool
for the Collection Period ending on such Determination Date (and the
portions allocable to principal and interest);
(xii) the aggregate amount of the Additional Trust Fund Expenses
(broken down by type) withdrawn from the Certificate Account during the
Collection Period ending on such Determination Date;
(xiii) to the extent provided by the related Mortgagors,
information with respect to occupancy rates for all Mortgaged Properties,
sales per square foot with respect to all retail Mortgaged Properties, and
capital expenditures and capital reserve balances with respect to all
Mortgaged Properties, in each case in the format of the Mortgage Loan
Schedule;
(xiv) such other information on a Mortgage Loan-by-Mortgage Loan
or REO Property-by-REO Property basis as the Trustee or the Depositor
shall reasonably request in writing (including, without limitation,
information with respect to any modifications of any Mortgage Loan, any
Mortgage Loans in default or foreclosure, the operation and disposition of
REO Property and the assumption of any Mortgage Loan); and
(xv) a brief description of any material waiver, modification or
amendment of any Mortgage Loan entered into by the Master Servicer
pursuant to this Agreement during the related Collection Period.
At or before 1:00 p.m. (New York City time) on the second Business
Day prior to the related Distribution Date, beginning in April, 2000, the Master
Servicer shall deliver to the Trustee, the Special Servicer, the Directing
Certificateholder and each Rating Agency (which delivery to the Special
Servicer, the Directing Certificateholder and the Rating Agencies may be
accomplished by making such information available on the Master Servicer's
Internet Website), the CMSA Property File, as set forth in Exhibit 1 to the
Confirmation.
At or before 1:00 p.m. (New York City time) on the second Business
Day prior to the related Distribution Date, beginning in May, 2000, the Master
Servicer shall deliver to the Trustee, the Special Servicer, the Directing
Certificateholder and each Rating Agency (which delivery to the Special
Servicer, the Directing Certificateholder and the Rating Agencies may be
accomplished by making such information available on the Master Servicer's
Internet Website), the CMSA Financial File, as set forth in Exhibit 1 to the
Confirmation.
On the date on which the reports described above are delivered to
the Trustee, the Master Servicer shall also deliver or cause to be delivered to
the Trustee and the Rating Agencies a report, in writing and in a
computer-readable medium, in form reasonably acceptable to the Trustee,
containing the information with respect to the Mortgage Pool necessary for the
Trustee to prepare with respect to the Mortgage Pool the additional schedules
and tables required to be made available by the Trustee pursuant to Section
4.02(a) in substantially the same formats set forth in Annex C to the Prospectus
Supplement, in each case reflecting the changes in the Mortgage Pool during the
related Collection Period.
Not later than the fifth day of the calendar month following each
Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business as to the calendar month prior to such Master Servicer
Remittance Date, stating that all distributions required by this Agreement to be
made by the Master Servicer have been made (or, in the case of any required
distribution that has not been made by the Master Servicer, specifying the
nature and status thereof) and showing, for the period from the preceding Master
Servicer Remittance Date (or, in the case of the first Master Servicer
Remittance Date, from the Original Cut-off Date) to such Master Servicer
Remittance Date, the aggregate of deposits into and withdrawals from the
Certificate Account for each category of deposit specified in Section 3.04(a)
and each category of withdrawal specified in Section 3.05(a). The Master
Servicer shall also deliver to the Trustee, upon reasonable request of the
Trustee, any and all additional information relating to the Mortgage Loans
(which information shall be based upon reports delivered to the Master Servicer
by the Special Servicer with respect to Specially Serviced Mortgage Loans and
REO Properties).
Following the end of each calendar quarter, commencing with the
calendar quarter ended March 31, 2000, within 105 days (or 180 days, in the case
of annual operating information), of receipt by the Master Servicer, as to
non-Specially Serviced Mortgage Loans, and within 30 days after receipt by the
Special Servicer, as to Specially Serviced Mortgage Loans, of any annual or
quarterly operating statements or rent rolls with respect to any Mortgaged
Property or REO Property, the Master Servicer or the Special Servicer, as
applicable, shall, based upon such operating statements or rent rolls, prepare
(or, if previously prepared, update) the written analysis of the operations, by
completing an "Operating Statement Analysis Report" in the form of Exhibit I for
such Mortgaged Property (with the annual operating statements attached thereto
as an exhibit). The Master Servicer shall maintain one Operating Statement
Analysis Report for each Mortgaged Property and REO Property (to the extent
prepared by and received from the Special Servicer in the case of any REO
Property or any Mortgaged Property constituting security for a Specially
Serviced Mortgage Loan). The Operating Statement Analysis Report for each
Mortgaged Property (other than any such Mortgaged Property which is REO Property
or constitutes security for a Specially Serviced Mortgage Loan) is to be updated
by the Master Servicer or the Special Servicer, as applicable, within thirty
days after receipt by the Master Servicer or Special Servicer, as applicable, of
updated operating statements for such Mortgaged Property. The Master Servicer or
the Special Servicer, as applicable, will use the "Normalized" column (applying
CMSA normalization methodology in effect from time to time) of the Operating
Statement Analysis Worksheet to update the Operating Statement Analysis Report
and will use any operating statements received with respect to any Mortgaged
Property (other than any such Mortgaged Property which is REO Property or
constitutes security for a Specially Serviced Mortgage Loan) to update the
Operating Statement Analysis Report for such Mortgaged Property. The Special
Servicer shall remit each Operating Statement Analysis Report prepared by it or
the related data fields, together with each Operating Statement Analysis
Worksheet or related data fields with the underlying operating statements and
rent rolls, to the Master Servicer in an electronic format reasonably acceptable
to the Master Servicer. All Operating Statement Analysis Reports and Operating
Statement Analysis Worksheets shall be maintained by the Master Servicer with
respect to each Mortgaged Property and REO Property, and the Master Servicer
shall forward copies thereof to the Rating Agencies, the Directing
Certificateholder, and the Trustee and, upon request, any Certificateholder or,
to the extent the Trustee or a Certificate Owner has confirmed its ownership
interest in the Certificates held thereby, such Certificate Owner, together with
the related operating statement or rent rolls. No later than 1:00 p.m., New York
City time, on the Master Servicer Remittance Date, beginning in March, 2000, the
Master Servicer shall prepare in electronic form and deliver to the Trustee, the
Rating Agencies, and the Special Servicer a Watch List of all Mortgage Loans
that the Master Servicer has determined are in jeopardy of becoming Specially
Serviced Mortgage Loans (the "Servicer Watch List"). For this purpose, Mortgage
Loans that are in jeopardy of becoming Specially Serviced Mortgage Loans shall
include, without limitation: (i) Mortgage Loans having a Debt Service Coverage
Ratio that is less than 1.00x, (ii) Mortgage Loans as to which any required
inspection of the related Mortgaged Property conducted by the Master Servicer
indicates a problem that the Master Servicer determines can reasonably be
expected to materially and adversely affect the cash flow generated by such
Mortgaged Property, (iii) Mortgage Loans which have come to the Master
Servicer's attention without any expansion of its duties under this Agreement by
reason hereof that (A) any tenant occupying 25% or more of the space in the
related Mortgaged Property has vacated (without being replaced by a comparable
tenant and lease) or been the subject of bankruptcy or similar proceeding, or
(B) relate to a Mortgagor or an affiliate that is the subject of a bankruptcy or
similar proceeding, (iv) Mortgage Loans that are at least 30 days delinquent in
payment, and (v) Mortgage Loans that are within 60 days of maturity.
The Master Servicer shall use its reasonable efforts to notify the
Rating Agencies in a timely manner of the vacating by an anchor tenant of a
retail Mortgaged Property and any material casualty at or condemnation or
eminent domain proceeding in respect of a Mortgaged Property, subject to its
becoming aware of such change or event.
To the extent the statements, reports and information (or portions
thereof) to be delivered by the Master Servicer under this Section 4.02(b) are
derived from underlying information to be delivered to the Master Servicer by
the Special Servicer, the Master Servicer shall not be liable for any failure to
deliver such statement, report or information (or portion thereof) on the
prescribed dates, to the extent such failure is caused by the Special Servicer's
failure to deliver such underlying information in a timely manner. Absent actual
knowledge to the contrary, the Master Servicer may conclusively rely on any such
information forwarded to it by the Special Servicer and shall have no obligation
to verify the same.
(c) At or before 1:00 p.m. (New York City time) one (1) Business Day
after the Determination Date prior to each Distribution Date, the Special
Servicer shall forward to the Master Servicer (A) data fields required for the
Master Servicer to prepare the Special Servicer Loan Status Report and (B) all
information the Master Servicer will be required to include in the other reports
that the Master Servicer is obligated to deliver to the Trustee pursuant to
Section 4.02(b), to the extent such information relates to any Specially
Serviced Mortgage Loan or any REO Property. The Special Servicer shall also
deliver to the Master Servicer and the Trustee, upon the reasonable written
request of either of them, any and all additional information in the possession
of the Special Servicer relating to the Specially Serviced Mortgage Loans and
the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to the
extent required to allow the Master Servicer to perform its obligations under
this Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans, including, without limitation, any financial or occupancy information
(including lease summaries) provided to the Special Servicer by the Mortgagors
or otherwise obtained, shall be delivered to the Master Servicer, within ten
days of receipt.
SECTION 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall either (i) deposit into the
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the Certificate Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees (but not the Special
Servicer's Standby Fee), Liquidation Fees and Workout Fees payable therefrom) to
make such P&I Advances. Any amounts held in the Certificate Account for future
distribution and so used to make P&I Advances (other than the Late Collections
of the delinquent principal and/or interest contemplated by the proviso to the
preceding sentence) 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/or interest in respect of which such P&I Advances were made). If,
as of 1:00 p.m., New York City time, on any Master Servicer Remittance 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 no. 816-435-6853 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone to Steven W. Smith at telephone no. 816-435-3695 (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 3:00 p.m., New York City time, on such Master
Servicer Remittance Date. If, after such notice, the Trustee does not receive
the full amount of such P&I Advances by the close of business (New York City
time) on such Master Servicer Remittance Date, then (i) unless the Trustee
determines that such Advance would be a Nonrecoverable P&I Advance if made, the
Trustee shall make, by 10:00 a.m. on the Distribution Date or in any event by
such time as shall be required in order to make the required distribution on
such Distribution Date, the portion of such P&I Advances that was required to
be, but was not, made by the Master Servicer on such Master Servicer Remittance
Date and (ii) such failure shall constitute an Event of Default on the part of
the Master Servicer.
(b) The aggregate amount of P&I Advances to be made in respect of
the Mortgage Loans (including, without limitation, Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans for any
Distribution Date shall equal, subject to subsection (c) below, the aggregate of
all Monthly Payments (other than Balloon Payments) and any Assumed Monthly
Payments, in each case net of related Master Servicing Fees (except for the
Standby Fee, which shall be advanced if not otherwise paid) and Workout Fees
payable hereunder, that were due or deemed due, as the case may be, in respect
thereof on their respective Due Dates during the related Collection Period and
that were not paid by or on behalf of the related Mortgagors or otherwise
collected as of the close of business on the last day of the related Collection
Period; provided that, if an Appraisal Reduction Amount exists with respect to
any Required Appraisal Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (i) the amount of the interest portion
of such P&I Advance for such Required Appraisal Loan for such Distribution Date
without regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, if any, and the denominator of which is
equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, Nonrecoverable P&I
Advances shall be reimbursable pursuant to Section 3.05(a) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer or, if applicable, the Trustee, that it has
made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered promptly (and, in any event, in the case of a
proposed P&I Advance by the Master Servicer, no less than 5 Business Days prior
to the related Master Servicer Remittance Date) to the Trustee (or, if
applicable, retained thereby), the Depositor and the Rating Agencies, setting
forth the basis for such determination, together with ( such determination is
prior to the liquidation of the related Mortgage Loan or REO Property) a copy of
an Appraisal of the related Mortgaged Property or REO Property, as the case may
be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained and that supports such
determination. The Trustee shall deliver such Officer's Certificate as soon as
practicable after its determination that such P&I Advance would be
nonrecoverable. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust. The Trustee shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular P&I Advance, and the Master Servicer shall
be entitled to rely on any determination of nonrecoverability that may have been
made by the Special Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the Master
Servicer and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds). With respect to any Master
Servicer Remittance Date, to the extent that such P&I Advance relates to any
Mortgage Loan having any Monthly Payment remaining unpaid past its Due Date and
past any applicable grace period for such Monthly Payment (a "Past Grace Period
Loan"), such interest shall begin to accrue when such Mortgage Loan becomes a
Past Grace Period Loan for so long as such P&I Advance is outstanding (or, in
the case of Advance Interest payable to the Master Servicer, if earlier, until
the Late Collection of the delinquent principal and/or interest in respect of
which such P&I Advance was made has been received by the Master Servicer or any
of its Sub-Servicers). Such interest will be paid: first, out of any Default
Charges collected on or in respect of the related Mortgage Loan (but only if
such Mortgage Loan is a Portfolio Mortgage Loan or a Conduit Mortgage Loan
initially primary serviced by Bank of America, N.A. (as indicated on the initial
Mortgage Loan Schedule) or is a Specially Serviced Mortgage Loan as to which
such Default Charges were collected during, and are allocable to, the period, if
any, that it was a Specially Serviced Mortgage Loan or an REO Loan); and second,
at any time coinciding with or following the reimbursement of such P&I Advance,
out of general collections on the Mortgage Loans and any REO Properties on
deposit in the Certificate Account. As and to the extent provided by Section
3.05(a), the Master Servicer shall reimburse itself or the Trustee, as
appropriate, for any P&I Advance made thereby as soon as practicable after funds
available for such purpose are deposited in the Certificate Account, 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 had been received as of
the related date on which such P&I Advance was made.
SECTION 4.04 Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, following the distributions to be
made to the Certificateholders on such date pursuant to Section 4.01(b), the
Trustee shall determine the amount, if any, by which (i) the then aggregate
Certificate Principal Balance of the Sequential Pay Certificates, exceeds (ii)
the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class N, Class M, Class L, Class
K, Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates
shall be reduced sequentially, in that order, in each case, until such excess or
the related Class Principal Balance is reduced to zero (whichever occurs first).
If, after the foregoing reductions, the amount described in clause (i) of the
second preceding sentence still exceeds the amount described in clause (ii) of
the second preceding sentence, then the respective Class Principal Balances of
the Class A Certificates shall be reduced, pro rata in accordance with the
relative sizes of the then outstanding Class Principal Balances of such Classes
of Certificates, until such excess or each such Class Principal Balance is
reduced to zero (whichever occurs first). Such reductions in the Class Principal
Balances of the respective Classes of the Sequential Pay Certificates shall be
deemed to be allocations of Realized Losses and Additional Trust Fund Expenses,
to the extent not covered by reductions in distributions of interest pursuant to
the allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, (i) any Realized Losses
allocated to the Class A-1A, Class A-2A, Class A-1B, Class A-2B and Class A-3B
Certificates pursuant to Section 4.04(a) with respect to such Distribution Date
shall reduce the Uncertificated Principal Balances of the Class UA-1A, Class
UA-2A, Class UA-1B, Class UA-2B and Class UA-3B Uncertificated Interests as a
write-off and shall be allocated pro rata among such REMIC IIIU Regular
Interests; (ii) any Realized Losses allocated to the Class UA-1A, Class UA-2A,
Class UA-1B, Class UA-2B and Class UA-3B Uncertificated Interests pursuant to
clause (i) with respect to such Distribution Date shall reduce the
Uncertificated Principal Balances of the Class MA-1, Class MA-2, Class MA-3,
Class MA-4, Class MA-1C and Class MA-2C Uncertificated Interests as a write-off
and shall be allocated pro rata among such Uncertificated Interests in
accordance with their Uncertificated Principal Balances; (iii) any Realized
Losses allocated to the Class B, Class C and Class D Certificates pursuant to
Section 4.04(a) with respect to such Distribution Date shall reduce the
Uncertificated Principal Balances of the Class MB, Class MC and Class MD
Uncertificated Interests, respectively, as a write-off, (iv) any Realized Losses
allocated to the Class K Certificates pursuant to Section 4.04(a) with respect
to such Distribution Date shall reduce the Uncertificated Principal Balance of
the Class MK Uncertificated Interest as a write-off, (v) any Realized Losses
allocated to the Class H and Class G Certificates pursuant to Section 4.04(a)
with respect to such Distribution Date shall reduce the Uncertificated Principal
Balances of the Class MG, Class MH and Class MJ Uncertificated Interests as a
write-off and shall be allocated first to the Class MJ and Class MH
Uncertificated Interests, pro rata, then to the Class MG Uncertificated Interest
in that order; (vi) any Realized Losses or Additional Trust Fund Expenses
allocated pursuant to Section 4.04(a) with respect to such Distribution Date
shall reduce the Uncertificated Principal Balances of the REMIC I Regular
Interests as a write-off and shall be allocated among the Class LA-1, Class
LA-2, Class LA-3, Class LA-4, Class LA-1C, Class LA-2C, Class LB, Class LC,
Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL,
Class LM and Class LN Uncertificated Interests in the same priority as its Class
of Corresponding REMIC II Uncertificated Regular Interests pursuant to Clauses
(ii), (iii), (iv) and (v) or Class of Corresponding Certificates pursuant to
Section 4.04(a).
SECTION 4.05 Interest Reserve Account.
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Master Servicer's name for the benefit of the
Certificateholders. The Interest Reserve Account shall be established and
maintained as an Eligible Account, which the Master Servicer may (but shall not
be obligated to) invest only in Permitted Investments in accordance with Section
3.06. On each Master Servicer Remittance Date occurring in February and each
Master Servicer Remittance Date in January of any year which is not a leap year,
the Master Servicer shall withdraw from the Certificate Account, in respect of
each Mortgage Loan which accrues interest on an Actual/360 Basis (other than the
Actual 365/360 Mortgage Loan), and deposit into the Interest Reserve Account, an
amount equal to one day's interest at the related Net Mortgage Rate on the
Stated Principal Balance of each such Mortgage Loan as of the Due Date in the
month preceding the month in which such Master Servicer Remittance Date occurs
(as calculated by the Master Servicer, who shall notify the Trustee of such
amount on or prior to the related Master Servicer Remittance Date), to the
extent a Monthly Payment or P&I Advance is made in respect thereof (all amounts
so deposited in any consecutive January (if applicable) and February, "Withheld
Amounts"). On or prior to the Master Servicer Remittance Date in March of each
calendar year, the Master Servicer shall remit to the Trustee for deposit into
the Distribution Account the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-22; 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 Class L, Class M, Class N, Class G,
Class H and Class K Certificates have been issued in denominations corresponding
to initial Certificate Principal Balances or Certificate Notional Amounts, as
the case may be, as of the Original Closing Date of not less than $100,000 (or,
with respect to the Class A Certificates, $10,000 and, with respect to the Class
X Certificates, $1,000,000) and any whole dollar denomination in excess thereof;
provided, however, that a single Certificate of each Class thereof may be issued
in a different denomination. The Class A-1A, Class A-2A, Class A-1B, Class A-2B
and Class A-3B Certificates will be issuable in denominations corresponding to
initial Certificate Principal Balances (or initial Certificate Notional Amount
as the case may) as of the Second Sequel Closing Date of not less than $10,000,
the Class B, Class C, Class D, Class E and Class F Certificates will be issuable
in denominations corresponding to initial Certificate Principal Balances (or
Certificate Notional Amount), as the case may be, of not less than $100,000 and
with respect to Class X Certificates $1,000,000 and whole dollar denomination in
excess thereof; provided, however, that a single Certificate of each Class
thereof may be issued in a difference denomination. Each Class of Residual
Certificates will be issuable only in a denomination representing the entire
Class. With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (a) set forth on
the face thereof or, (b) set forth on a schedule attached thereto or (c) in the
case of any beneficial interest in a Book-Entry Certificate, the interest of the
related Certificate Owner in the applicable Class of Certificates as reflected
on the books and records of the Depository or related Participants, as
applicable, (ii) expressed in terms of initial Certificate Principal Balance or
initial Notional Amount, as applicable, and (iii) be in an authorized
denomination, as set forth above. The Book-Entry Certificates will be issued as
one or more certificates registered in the name of a nominee designated by the
Depository, and Certificate Owners will hold interests in the Book-Entry
Certificates through the book-entry facilities of the Depository in the minimum
Denominations and aggregate Denominations as set forth in the above. No
Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee 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
Certificate Registrar 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;
provided that the Certificates issued on the Original Closing Date, the First
Sequel Closing Date or the Second Sequel Closing Date shall, in any event, be
dated the Original Closing Date, the First Sequel Closing Date or the Second
Sequel Closing Date, as the case may be.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
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
(located as of the Original Closing Date at Wells Fargo Center, Sixth and
Marquette, MAC #N9303-121, Minneapolis, Minnesota 55479-0113) may prescribe, the
Certificate Registrar 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
Trustee may appoint, by a written instrument delivered to the Depositor, the
Master Servicer, the Special Servicer and the REMIC Administrator, any other
bank or trust company to act as Certificate Registrar under such conditions as
the predecessor Certificate Registrar may prescribe, provided that the Trustee
shall not be relieved of any of its duties or responsibilities hereunder as
Certificate Registrar 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 predecessor's duties as Certificate Registrar. The
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
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 request, the Trustee shall promptly inform, or cause the
Certificate Registrar to inform, the Master Servicer or the Special Servicer, as
applicable, of the identity of all Certificateholders of the Controlling Class.
If Certificateholders representing more than 25% of any Class of
Certificates (hereinafter referred to as "applicants") apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders 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, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If the Trustee is no longer the
Certificate Registrar and such a list is as of a date more than 90 days prior to
the date of receipt of such applicants' request, the Trustee shall promptly
request from the Certificate Registrar a current list as provided above, and
shall afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(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 which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof) is to be made in reliance upon an exemption
from the Securities Act, and under the applicable state securities laws, then
either: (i) the Certificate Registrar shall require that the transferee deliver
to the Certificate Registrar an investment representation letter (the
"Investment Representation Letter") substantially in the form of Exhibit B
attached hereto, which Investment Representation Letter shall certify, among
other things, that the transferee is an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act (an "Institutional Accredited Investor") or a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act (a "Qualified
Institutional Buyer"), and the Certificate Registrar may also require that the
transferee deliver to the Certificate Registrar an Opinion of Counsel if such
transferee is not a Qualified Institutional Buyer or (ii) if the certifications
described in the preceding clause (i) cannot be provided, (a) the Certificate
Registrar shall require an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar and the Depositor that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from registration or qualification under the Securities Act, applicable state
securities laws and other relevant laws, which Opinion of Counsel shall not be
an expense of the Trust Fund, the Certificate Registrar, the Depositor or the
Trustee and (b) the Certificate Registrar shall require the transferor to
execute a certification in form and substance satisfactory to the Certificate
Registrar setting forth the facts surrounding such transfer; provided, however,
that a transfer of a Non-Registered Certificate of any such Class may be made to
a trust if the transferor provides to the Certificate Registrar and to the
Trustee a certification that interests in such trust may only be transferred
subject to requirements substantially to the effect set forth in this Section
5.02. The Master Servicer will furnish, or cause to be furnished, upon the
request of any Holder of Non-Registered Certificates, to a prospective purchaser
of such Non-Registered Certificates who is a Qualified Institutional Buyer, such
information relating to the Mortgage Loans that are in its possession and as is
specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Master Servicer 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 does hereby agree to, indemnify the Depositor, the
Trustee, the Master Servicer and the Certificate Registrar 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. Unless the Certificate Registrar determines
otherwise in accordance with applicable law and the rules and procedures of, or
applicable to, the Depository (the "Depository Rules"), transfers of a
beneficial interest in a Book-Entry Certificate representing an interest in a
Non-Registered Certificate that is not rated in one of the top four categories
by a nationally recognized statistical rating organization to (i) an
Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b) or (ii) a Qualified Institutional Buyer may only be effectuated by means
of an "SRO Rule 144A System" approved for such purpose by the Commission.
(c) With respect to the Subordinated Certificates, no sale,
transfer, pledge or other disposition by any Holder of any such Certificate
shall be made unless the Certificate Registrar shall have received either (i) a
representation letter from the proposed purchaser or transferee of such
Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than (except with respect to a Residual
Certificate) an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Prohibited Transaction Class Exemption 95-60 or (ii)
except for the Residual Certificate (which may not be transferred to a Holder
who does not make the representation described in clause (i)(a)) if such
Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, any Opinion of Counsel or other
Certification as the Certificate Registrar may reasonably require and in form
and substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA,
the prohibited transaction provisions of the Code or the provisions of any
Similar Law, will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriter or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Agreement. The
Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any such Certificate unless the Certificate Registrar has
received either the representation letter described in clause (i) above or the
Opinions of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters, certifications or Opinions of Counsel shall
not be borne by any of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Underwriter, the Certificate Registrar and/or the Trust Fund.
To the extent the purchase or holding of a Subordinate Certificate would be
restricted by ERISA, the Code or Similar Law, each Certificate Owner of a
Subordinate Certificate shall be deemed to represent that it is not a Person
specified in clauses (a) or (b) above. Any transfer, sale, pledge or other
disposition of any such Certificates that would constitute or result in a
prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law,
or would otherwise violate the provisions of this Section 5.02(c) shall be
deemed absolutely null and void ab initio, to the extent permitted under
applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer or the Special Servicer, as applicable, will make available, or
cause to be made available, upon reasonable request, to any Holder and any
Person to whom any such Certificate of any such Class of Certificates may be
offered or sold, transferred, pledged or otherwise disposed of by such Holder,
information with respect to the Master Servicer, the Special Servicer or the
Mortgage Loans reasonably necessary to the provision of an Opinion of Counsel
described in this Section 5.02(c).
(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 Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator 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 (other than in connection
with the initial issuance thereof or the transfer thereof
among the Depositor and its Affiliates), 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 C-1 (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 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
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) Except in connection with the initial issuance of the Residual
Certificates or any transfer thereof among the Depositor and
its Affiliates, 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 C-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator 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.
(iii) The REMIC Administrator shall make available to the
Internal Revenue Service and those Persons specified by the REMIC
Provisions all information necessary to compute any tax imposed as a
result of the Transfer of an Ownership Interest in a Residual Certificate
to any Person who is a Disqualified Organization or a nominee, agent or
middleman thereof, including the information described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" of such Residual Certificate. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of
the REMIC Administrator for providing such information.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner owning a beneficial interest in a
Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry Certificate for a Definitive Certificate or Certificates. Following a
proper request for transfer or exchange, the Certificate Registrar shall,
execute and deliver at such offices or at the office of such transfer agent, as
the case may be, to the transferee (in the case of transfer) or Holder (in the
case of exchange) or send by first class mail (at the risk of the transferee in
the case of transfer or Holder in the case of exchange) to such address as the
transferee or Holder, as applicable, may request, a Definitive Certificate or
Certificates, as the case may require, for a like aggregate Denomination and in
such Denomination or Denominations as may be requested.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that such
holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(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 Trustee or 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. In
addition, in connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Original Closing Date. All Certificates surrendered for
transfer and exchange shall be physically canceled by the Certificate Registrar,
and the Certificate Registrar shall hold or destroy such canceled Certificates
in accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2000, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The Class A-1A, Class A-2A, Class A-1B, Class A-2B, Class A-3B,
Class B, Class C, Class D, Class E, Class F and Class X Certificates (as of the
Second Sequel Closing Date), the Class G, Class H and Class K Certificates (as
of the First Sequel Closing Date), and the Class L, Class M and Class N
Certificates (as of the Original Closing Date) shall initially be issued as one
or more Certificates registered in the name of the Depository or its nominee
and, except as provided in subsection (c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in subsection (c) below, shall not be entitled to fully registered,
physical 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. Neither the Certificate
Registrar nor the Trustee shall have any responsibility to monitor or restrict
the transfer of Ownership Interests in Certificates through the book-entry
facilities of the Depository.
(b) The Depositor, the Mortgage Loan Seller, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator 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.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(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 any 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 any Class of the 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 any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator 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.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(f) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(f).
Upon receipt by the Certificate Registrar at the Registrar Office of (i) the
Definitive Certificate to be transferred with an assignment and transfer
pursuant to this Section 5.03(f), (ii) written instructions given in accordance
with Depository Rules directing the Certificate Registrar to credit or cause to
be credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest and (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
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
reasonably 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 Trustee shall
execute and the Certificate Registrar 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar and any agents
of any of them may treat the person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any agent of
any of them shall be affected by notice to the contrary.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
SECTION 5.07 Regarding the Identification of Certain
Certificateholders.
(a) For purposes of determining the identity of the holders of the
Class G, Class H, Class K, Class L, Class M, and Class N Certificates to whom
certain reports and other information are required to be delivered hereunder,
the Trustee and the Master Servicer may rely, with respect to any such
Certificates outstanding in book-entry form, on a certification, given to the
Trustee and provided to the Master Servicer, by any Person that such person is
such a holder entitled to receive such reports or information hereunder. With
respect to the Class A, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class K, Class R-I, Class R-II, Class R-III, Class R-IIIU and
Class R-IV Certificates, from time to time, upon the request of the Master
Servicer, the Trustee shall provide the Master Servicer with a list of the
Certificateholders recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer and the REMIC Administrator.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed
upon and undertaken by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer and the REMIC Administrator
each will keep in full effect its existence, rights and franchises as a
corporation or other business organization under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign corporation or otherwise 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.
The Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator each may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
(which, as to the Master Servicer and the Special Servicer, may be limited to
all or substantially all of its assets relating to the business of mortgage loan
servicing) to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator shall be a party, or
any Person succeeding to the business of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator, 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, the Special Servicer, or the
Mortgage Loan Seller unless such succession will not result in any downgrade,
qualification (if applicable) or withdrawal of the rating then assigned by any
Rating Agency to any Class of Certificates (as confirmed in writing).
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and Others.
None of the Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator or any director, officer, employee or agent of any of
the foregoing shall be under any liability to the Trust 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, the Special
Servicer, the REMIC Administrator or any such other Person against any breach of
a representation or warranty made herein, or against any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder, or by reason of negligent disregard of such obligations and duties.
The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and any director, manager, member, officer, employee or agent
(including Sub-Servicers) of any of the foregoing 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, the REMIC Administrator and any director,
manager, member, officer, employee or agent (including Sub-Servicers) of any of
the foregoing shall be indemnified and held harmless by the Trust against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement, the Certificates or any asset of the Trust, other than any
loss, liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
(ii) incidental to the performance of obligations and duties hereunder,
including, without limitation, in the case of the Master Servicer or the Special
Servicer, the prosecution of an enforcement action in respect of any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement); or (iii) which was
incurred in connection with claims against such party resulting from (A) any
breach of a representation or warranty made herein by such party, (B) willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder by such party, or from negligent disregard of such obligations or
duties, or (C) any violation by such party of any state or federal securities
law. None of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator 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, except in the case of a legal action contemplated by
Section 3.22, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator 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, and the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall be
entitled to the direct payment of such expenses or to be reimbursed therefor
from the Certificate Account as provided in Section 3.05(a).
SECTION 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each and
every Rating Agency to the effect that such resignation and appointment will not
result in the downgrade, qualification (if applicable) or withdrawal of any
rating then assigned by such Rating Agency to any Class of Certificates, or (ii)
upon determination that such obligations and 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, Special Servicer or REMIC Administrator, as the case may
be, so causing such a conflict being of a type and nature carried on by the
Master Servicer, Special Servicer or REMIC Administrator, as the case may be, at
the date of this Agreement. Any such determination of the nature described in
clause (ii) of the preceding sentence permitting the resignation of the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
shall be evidenced by an Opinion of Counsel to such effect which shall be
rendered by Independent counsel, be addressed and delivered to the Trustee and
the Rating Agencies and be paid for by the resigning party. No such resignation
for either reason shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
hereunder. All costs and expenses of the Trustee and the Trust (including,
without limitation, any costs or expenses of any party hereto reimbursable out
of the Trust Fund) in connection with any such resignation (including, without
limitation, any requisite transfer of servicing) shall be paid for, as incurred,
by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or 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, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.11(a) and Section 3.22, the entire amount of compensation payable to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, pursuant hereto shall thereafter be payable to such successor.
SECTION 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer, the Special Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its (or its corporate parent's) most
recent annual audited financial statements (or, if not available, the audited
annual financial statements of it and its affiliates on a consolidated basis),
and such other information directly related to the servicing of the Mortgage
Loans or its ability to perform its obligations hereunder as it possesses as is
publicly available regarding its business, affairs, property and condition,
financial or otherwise. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer, the Special Servicer and the REMIC
Administrator hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder or, in connection with a
default thereby, exercise the rights of the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder; provided, however, that none of
the Master Servicer, the Special Servicer or the REMIC Administrator shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. The Depositor shall not have any responsibility
or liability for any action or failure to act by the Master Servicer, the
Special Servicer or the REMIC Administrator and is not obligated to supervise
the performance of the Master Servicer, the Special Servicer or the REMIC
Administrator under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or the Interest Reserve Account any amount required to
be so deposited under this Agreement which continues unremedied for two
Business Days following the date on which such deposit was first required
to be made, or any failure by the Master Servicer to deposit into, or (B)
to remit to the Trustee for deposit into, the Distribution Account on any
Master Servicer Remittance Date, the full amount of any Master Servicer
Remittance Amount and Withheld Amounts, respectively, required to be so
deposited or remitted under this Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
the REO Account any amount required to be so deposited or remitted under
this Agreement which continues unremedied for two Business Days following
the date on which such deposit or remittance was first required to be
made; or
(iii) any failure by the Master Servicer to remit to the Trustee
for deposit into the Distribution Account, on any Master Servicer
Remittance Date, the full amount of P&I Advances required to be made on
such date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement,
which failure continues unremedied for a period of one Business Day
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make any
Emergency Advance (or timely direct the Master Servicer to make any
Servicing Advance) required to be made by it or the Master Servicer at its
direction pursuant to this Agreement, which failure continues unremedied
for a period of two (2) Business Days following the date on which notice
has been given to the Special Servicer by the Trustee as provided in
Section 3.11(e); or
(vi) 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 thereof contained in this Agreement,
which failure 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 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 if such covenant or
agreement is capable of being cured and the Master Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30 day
period shall be extended, once only, for an additional 30 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure 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 REMIC Administrator by any other party hereto, or to the REMIC
Administrator, 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 if such covenant or agreement is capable of being cured and
the Master Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30 day period shall be extended, once only, for
an additional 30 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement which materially and adversely affects
the interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, 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 if such
breach is capable of being cured and the Master Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30 day
period shall be extended, once only, for an additional 30 days; or
(ix) 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,
marshalling 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, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 90 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling 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
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator 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
(xii) Moody's places the ratings from any Class of Certificates
on a "watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing concerns of the Master Servicer or the Special Servicer,
as applicable, as the sole or contributory factor in such rating action
and the Master Servicer or the Special Servicer, as applicable, shall not
have resolved all such matters to the satisfaction of Moody's within sixty
(60) days (or such longer time period as may be agreed in writing by
Moody's) after such placement on "watch" status; or
(xiii) either the Master Servicer is removed from S&P's approved
master servicer list or the Special Servicer is removed from S&P's
approved special servicer list and the ratings of any of the Certificates
rated by S&P are downgraded, qualified (including, without limitation, the
placement of such Certificates on "negative credit watch") or withdrawn in
connection with such removal, and the Master Servicer or the Special
Servicer, as the case may be, shall not have been restored to such list
within sixty (60) days following such removal.
Each Event of Default listed above as items (iv) through (xiii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clauses (xii) or (xiii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, or if the relevant
Event of Default is the one described in clause (xi) of subsection (a) above,
the Trustee shall, terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (subject to Section 3.11, accruing from and after such notice) of
the Defaulting Party under this Agreement and in and to the Mortgage Loans and
the proceeds thereof. With respect to each of the Events of Default listed above
as clauses (xii) and (xiii), the Trustee shall provide written notice of such
Event of Default to each Certificateholder and request written direction of such
Certificateholders whether they desire to terminate the Defaulting Party; if no
such direction is received from at least 51% of the Voting Rights within fifteen
(15) Business Days after delivery of such notice by the Trustee, and the Trustee
has not elected pursuant to the preceding sentence to terminate the Defaulting
Party, the Defaulting Party will not be terminated by reason of such Event of
Default. From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The 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 reasonably 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, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans and any REO Properties (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b) or Section 3.23, continue to be
obligated for or entitled to receive all amounts accrued or owing by or to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its directors, officers, employees
and agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). All costs and expenses of the Trustee and
the Trust (including, without limitation, any costs and expenses of any party
hereto reimbursable out of the Trust Fund) in connection with the termination of
the Master Servicer or Special Servicer, as applicable, under this Section
7.01(b) (including, without limitation, the requisite transfer of servicing)
shall be paid for, as incurred, by the Defaulting Party. Notwithstanding the
foregoing, the Majority Certificateholders of the Controlling Class have the
right to appoint a new Special Servicer pursuant to Section 3.23.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, 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. The REMIC Administrator agrees promptly
(and in any event no later than ten Business Days subsequent to its receipt of
the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or
the REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation, (subject to Section 3.11)
which the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act, or is not approved by each and
every Rating Agency as an acceptable master servicer or special servicer, as the
case may be, of commercial mortgage loans, or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, or if the REMIC Administrator is the resigning or terminated party and
the Trustee had been acting in such capacity, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder;
provided that such appointment does not result in the downgrading, qualification
(if applicable) or withdrawal of any rating then assigned by any Rating Agency
to any Class of Certificates (as evidenced by written confirmation thereof from
each Rating Agency). No appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder shall be effective until
the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. Subject to Section
3.11 and 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 or in respect of the Mortgage Loans or otherwise 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. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Any costs and expenses associated
with the transfer of the foregoing functions under this Agreement (other than
the set-up costs of the successor) shall be borne by the predecessor Master
Servicer, Special Servicer or REMIC Administrator, as applicable, and, if not
paid by such predecessor Master Servicer, Special Servicer or REMIC
Administrator within thirty days of its receipt of an invoice therefor, shall be
an expense of the Trust; provided that such predecessor Master Servicer, Special
Servicer or REMIC Administrator shall reimburse the Trust for any such expense
so incurred by the Trust; and provided, further, that the Trustee shall decide
whether and to what extent it is in the best interest of the Certificateholders
to pursue any remedy against any party obligated to make such reimbursement.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(g) to have notice
of the occurrence of such an event, the Trustee shall transmit by mail to the
other non-defaulting parties hereto and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default, except that prior to any
waiver of an Event of Default arising from a failure to make P&I Advances, the
Trustee shall be reimbursed all amounts which it has advanced. 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 (provided that
neither the Depositor nor any Affiliate thereof is the party in respect of which
such Event of Default exists) shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
SECTION 7.05 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 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.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). 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 in form to the requirements of this Agreement. If
any such instrument is found not to so 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, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator 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 willful misconduct; provided, however, that:
(i) 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; and
(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% (or, as to any particular matter, any higher percentage as may
be specifically provided for hereunder) 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.
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) 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;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default hereunder 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;
(d) 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;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such 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;
(f) 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-in-fact, provided that the use of any such agent or attorney-in-fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(h) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator,
as the case may be) or for any act or omission of the Depositor or the Mortgage
Loan Seller.
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 representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Sections 2.08 and 2.09) 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 or the Mortgage Loan
Seller in respect of the assignment of the Mortgage Loans to the Trust, or any
funds deposited in or withdrawn from the Certificate Account, the Interest
Reserve Account or any other account by or on behalf of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator. 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, the Special Servicer or the
REMIC Administrator and accepted by the Trustee, in good faith, pursuant to this
Agreement.
SECTION 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any agent
of the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
SECTION 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless by the Trust (to
the extent of amounts on deposit in the Certificate Account and the Distribution
Account from time to time) against any loss, liability or expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement) arising out of,
or incurred in connection with, any legal actions relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder; provided
that none of the Trustee or any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable
overhead, (ii) expenses or disbursements incurred or made by or on behalf of the
Trustee in the normal course of the Trustee's performing its routine duties in
accordance with any of the provisions hereof, (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee 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 a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "Aa3" by Moody's, and
"AA" by S&P (or, in the case of each Rating Agency, such lower ratings as would
not, as confirmed in writing by such Rating Agency, result in a downgrade,
qualification (if applicable) or withdrawal of any of the then-current ratings
assigned by such Rating Agency to the Certificates). If such corporation, trust
company, bank or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then, for the purposes of this Section 8.06, the combined
capital and surplus of such corporation, trust company, bank or banking
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No Person shall become a
successor trustee hereunder if the succession of such Person would result in a
downgrade, qualification (if applicable) or withdrawal of any of the ratings
then assigned by the Rating Agencies to the Certificates. 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. The corporation, trust company, bank or banking
association serving as Trustee may have normal banking and trust relationships
with the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the REMIC Administrator and their respective Affiliates.
SECTION 8.07 Resignation and Removal of the 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
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator and to all Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the 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, then the Depositor may remove the Trustee and appoint a successor
trustee 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 Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, the Depositor and the remaining Certificateholders shall have
been notified; and provided further that other Holders of the Certificates
entitled to a greater percentage of the Voting Rights shall not have objected to
such removal in writing to the Master Servicer and the Depositor within 30 days
of their receipt of notice thereof. A copy of such instrument shall be delivered
to the Depositor, the Mortgage Loan Seller, the Special Servicer, the REMIC
Administrator and the remaining Certificateholders by the Master Servicer.
(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; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates.
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 Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the REMIC Administrator 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 and related documents and statements at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator 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. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(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, the 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, 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 that the Trustee shall continue to be eligible under
the provisions of Section 8.06. The successor to the Trustee shall promptly
notify in writing each of the other parties hereto, the Certificateholders and
the Rating Agencies of any such merger, conversion, consolidation or succession
to business.
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, the Special Servicer or the REMIC
Administrator 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 die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee which do not comply with
the provisions of Section 8.10(b).
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a 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, the Mortgage Loan Seller
or any Affiliate of any of them. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any such Custodian
(other than the Trustee or an Affiliate of the Trustee) shall maintain the same
errors and omissions insurance as required of the Master Servicer pursuant to
Section 3.07(c).
SECTION 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Mortgage
Loans and the Trust Fund, that is within its control which may be required by
this Agreement or by applicable law. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal business
hours at the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee 12 copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 12 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the
Original Closing Date pursuant to Section 3.13, (B) all accountants' reports
delivered to the Trustee since the Original Closing Date pursuant to Section
3.14, (C) the most recent inspection report, together with any related
additional written or electronic information, prepared or obtained by, or on
behalf of, the Master Servicer or Special Servicer, as the case may be, and
delivered to the Trustee in respect of each Mortgaged Property pursuant to
Section 3.12(a), (D) all Mortgagor financial statements and Mortgaged Property
operating statements and rent rolls, together with any related additional
written or electronic information, delivered to the Trustee by the Master
Servicer or the Special Servicer pursuant to Section 3.12(b), (E) any and all
notices and reports delivered to the Trustee with respect to any Mortgaged
Property securing a defaulted Mortgage Loan as to which the environmental
testing contemplated by Section 3.09(c) revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof was not
satisfied or that any remedial, corrective or other further action contemplated
in such clauses is required (but only for so long as such Mortgaged Property or
the related Mortgage Loan is part of the Trust Fund), (F) all documents
constituting the Mortgage Files, including, without limitation, any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund), and (G) any appraisal obtained for a
Required Appraisal Loan. Copies of any and all of the foregoing items are to be
available from the Trustee upon request; however, the Trustee shall be permitted
to require payment of a sum sufficient to cover the reasonable costs and
expenses of providing such service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13 Filings with the Securities and Exchange
Commission.
The provisions of this paragraph shall not apply until such time as
any Class of Certificates is registered under the Securities Act of 1933.
Thereupon, the Depositor shall prepare for filing, execute and properly file
with the Commission, the initial 8-K. The Trustee shall, at the expense of the
Depositor, prepare for filing, execute and properly file with the Commission (i)
the Form 10-K, (ii) the form 15 in January 2001 and (iii) the Form 8-K with the
following attachments: (a) the Distribution Date Statements, and (b) any
additional items requested by the Depositor, and (c) any items specifically
provided herein to be filed on behalf of the Trust under the Exchange Act;
provided that any such items shall have been received by the Trustee (to the
extent not generated by the Trustee) in the format required for electronic
filing via the EDGAR system; and provided, further, that any such items that are
required to be delivered by the Master Servicer or the Special Servicer to the
Trustee shall be so delivered in the format required for electronic filing via
the EDGAR system (in addition to any other required format). The Depositor
hereby grants to the Trustee a limited power of attorney to execute and file
each such document on behalf of the Depositor. Such power of attorney shall
continue until either the earlier of (i) receipt by the Trustee from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. The Depositor agrees to promptly furnish to the
Trustee, from time to time upon request, such further information, reports, and
financial statements within its control related to this Agreement and the
Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Trustee shall have no
responsibility to file any such items that have not been received in such EDGAR
compatible format nor shall it have any responsibility to convert any items to
such format. The Depositor shall (i) 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 Commission regarding
the usual and customary exemption from certain reporting requirements granted to
issuers of securities similar to the Certificates; and, (ii) promptly forward
copies of any response from the Commission to the Trustee.
SECTION 8.14 Year 2000 Compliance.
The Trustee covenants that by December 31, 1999, any custom-made
software or hardware designed or purchased or licensed by it and used by it in
the course of the operation or management of, or the compiling, reporting or
generation of, data required by this Agreement will be capable of identifying
correctly or performing calculations or other processing accurately with respect
to dates after December 31, 1999.
SECTION 8.15 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel to the Depositor and the Rating Agencies to the effect that the
Trustee's first priority interest in the Mortgage Notes has been duly and fully
perfected under the applicable laws and regulations of such other jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and the obligations of the
REMIC Administrator to file the final Tax Returns for REMIC I, REMIC II, REMIC
III, REMIC IIIU and REMIC IV and to maintain the books and records thereof for a
commercially reasonable period) shall terminate upon payment (or provision for
payment) to the Certificateholders of all amounts held by or on behalf of the
Trustee and required hereunder to be so paid on the Distribution Date following
the earlier to occur of (i) the purchase by the Master Servicer or by any
Majority Certificateholder of the Controlling Class (other than the Depositor or
the Mortgage Loan Seller) of all Mortgage Loans and each REO Property remaining
in REMIC I at a price (to be calculated by the Master Servicer and the Trustee
as of the close of business on the third Business Day preceding the date upon
which notice of any such purchase is furnished to Certificateholders pursuant to
the third paragraph of this Section 9.01 and as if the purchase was to occur on
such Business Day) equal to (A) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus (B) the appraised value of each REO Property, if
any, included in REMIC I (such appraisal to be conducted by a Qualified
Appraiser selected by the Master Servicer or the Special Servicer and approved
by the Trustee), minus (C) if such purchase is being made by the Master
Servicer, the aggregate amount of unreimbursed Advances made by the Master
Servicer, together with any Advance Interest payable to the Master Servicer in
respect of such Advances 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 (ii) the final payment or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James, living on the date
hereof.
The Majority Certificateholder of the Controlling Class (other than
the Depositor or the Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer has the right, and if the Master Servicer fails to exercise such
right, the Special Servicer has the right 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 the Master Servicer, the Special Servicer and any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) each may so elect to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I only if the aggregate Stated
Principal Balance of the Mortgage Pool at the time of such election is less than
1.0% of the Initial Pool Balance. In the event that the Master Servicer, the
Special Servicer or any Majority Certificateholder of the Class (other than the
Depositor or the Mortgage Loan Seller) elects to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer, the Special Servicer or such Majority
Certificateholder, as applicable, shall deposit in the Distribution Account not
later than the Master Servicer Remittance Date relating to the Distribution Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Certificate Account). In addition, the Master Servicer shall transfer all
amounts required to be transferred to the Distribution Account on such Master
Servicer Remittance Date from the Certificate Account pursuant to the first
paragraph of Section 3.04(b). Upon confirmation that such final deposits have
been made, the Trustee shall release or cause to be released to the purchaser or
its designee, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the purchaser, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in REMIC I.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
the Mortgage Loan Seller) of all 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 5th day of such month, in each case specifying (i) the Distribution
Date upon which the Trust will terminate and final payment on 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.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Sections 4.01(a)(iii), (iv), (v) and (vi) and Section
4.01(b). Final distributions on the REMIC I Regular Interests, the REMIC II
Uncertificated Regular Interests, the REMIC III Uncertificated Regular Interest
and the REMIC IIIU Regular Interests shall be made on such date as provided in
Section 4.01(a)(ii).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final 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 Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable 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 hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, the Class R-IV Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject thereto.
SECTION 9.02 Additional Termination Requirements.
In the event the Master Servicer, the Special Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO Property
remaining in REMIC I as provided in Section 9.01, the Trust (and, accordingly,
REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer or such Majority Certificateholder, as applicable, obtains at its own
expense and delivers to the Trustee and the REMIC Administrator an Opinion of
Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the failure of the Trust to comply with the requirements of this Section
9.02 will not result in the imposition of taxes on "prohibited transactions" of
REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV as defined in Section 860F
of the Code or cause REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV pursuant
to Treasury Regulations Section 1.860F-1;
(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 or the Majority
Certificateholder of the Controlling Class, as applicable, for cash; and
(iii) prior to the end of such 90-day liquidation period and at
the time of the making of the final payment on the Certificates, the
Trustee shall distribute or credit, or cause to be distributed or
credited, to the Holders of the applicable Class of Residual Certificates
all cash on hand (other than cash retained to meet claims), and each of
REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV shall terminate at
that time.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II, REMIC III, REMIC IIIU and REMIC IV, as a REMIC under the Code and, if
necessary, under Applicable State Law. Each 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 are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-I Certificates are hereby designated as the sole Class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC I.
The REMIC II Regular Interests are hereby designated as the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the Class R-II
Certificates are hereby designated as the sole Class of "residual interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC II. The REMIC
III Regular Interests are hereby designated as the "regular interests" (within
the meaning of Section 860G(a)(1) of the Code), and the Class R-III Certificates
are hereby designated as the sole Class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. The REMIC IIIU Regular
Interests are hereby designated as the "regular interests" (within the meaning
of Section 860G(a)(1) of the Code), and the Class R-IIIU Certificates are hereby
designated as the sole Class of "residual interests" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC IIIU. The REMIC IV Certificates (other
than the Class R-IV Certificates) are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the code), and the Class
R-IV Certificates are hereby designated as the sole Class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC IV.
For the avoidance of doubt, the Class X Certificates represent "specified
portions," within the meaning of Treasury Regulations Section 1.860G-1(a)(2), of
the interest payments on the Class UA-1A, Class UA-2A, Class UA-1B, Class UA-2B,
Class UA-3B, Class MB, Class MC, Class MD and Class UX Uncertificated Interests,
and Class UX Uncertificated Interest represents such "specified portions" of the
interest payments on the Class MG, Class MH, Class MJ, Class MK and Class MX
Uncertificated Interests, and the Class MX Uncertificated Interest represents
such "specified portions" of the interest payments on the Class LL
Uncertificated Interest, the Class LM Uncertificated Interest, and the Class LN
Uncertificated Interest. None of the REMIC Administrator, the Master Servicer,
the Special Servicer or the Trustee shall, to the extent it is within the
control of such Person, create or permit the creation of any other "interests"
in any of REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV (within the
meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(c) The Original Closing Date is hereby designated as the "startup
day" of each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of
the Code. The First Sequel Closing Date is hereby designated as the "start up
day" of REMIC III within the meaning of Section 860G(a)(9) of the Code. The
Second Sequel Closing Date is hereby designated as the "startup day" of each of
REMIC IIIU and REMIC IV within the meaning of Section 860G(a)(9) of the Code.
The "latest possible maturity date", within the meaning of Treasury Regulations
Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests, the REMIC II
Regular Interests, the REMIC III Regular Interests, the REMIC IIIU Regular
Interests and the REMIC IV Regular Certificates is November 15, 2029, the
Distribution Date following the latest maturity date of any Mortgage Loan.
(d) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC
IV and shall: act on behalf of the Trust in relation to any tax matter or
controversy, represent the Trust in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of REMIC I, REMIC
II, REMIC III, REMIC IIIU and REMIC IV, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV, and
otherwise act on behalf of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and
REMIC IV in relation to any tax matter or controversy involving such REMIC. By
their acceptance thereof, the Holders of the Residual Certificates hereby agree
to irrevocably appoint the REMIC Administrator as their agent to perform all of
the duties of the Tax Matters Person for REMIC I, REMIC II, REMIC III, REMIC
IIIU and REMIC IV. Subject to Section 10.01(h), the legal expenses and costs of
any action described in this subsection (d) and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV. The
expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform or cause to be performed
on behalf of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV all
reporting and other tax compliance duties that are the responsibility of each
such REMIC under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any other taxing authority under Applicable State Law.
Included among such duties, the REMIC Administrator shall provide, or cause to
be provided: (i) to any Transferor of a Residual Certificate and the IRS, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is a Disqualified
Organization; (ii) to 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); and (iii) with respect to
REMIC II (as to the Unaffected REMIC II Certificates), REMIC III (as to the
Unaffected REMIC III Certificates), and REMIC IV (as to the REMIC IV Regular
Certificates), Form 8811, or other applicable form, to the IRS, and the name,
title, address and telephone number of the Person who will serve as the
representative of REMIC II (as to the Unaffected REMIC II Certificates), REMIC
III (as to the Unaffected REMIC III Certificates), and REMIC IV (as to the REMIC
IV Regular Certificates).
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I, REMIC II, REMIC III, REMIC IIIU and REMIC IV as a
REMIC under the REMIC Provisions (and each of the other parties hereto shall
assist it, to the extent reasonably requested by it). The REMIC Administrator
shall not knowingly take (or cause any of REMIC I, REMIC II, REMIC III, REMIC
IIIU or REMIC IV to take) any action or fail to take (or fail to cause to be
taken) any action within the scope of its duties more specifically set forth
hereunder that, under the REMIC Provisions, if taken or not taken, as the case
may be, could result in an Adverse REMIC Event with respect to either such
REMIC, unless the REMIC Administrator has received an Opinion of Counsel to the
effect that the contemplated action will not result in an Adverse REMIC Event.
None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I, REMIC II, REMIC III, REMIC IIIU or
REMIC IV, or causing REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV to
take any action, that is not expressly permitted under the terms of this
Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV to take any
such action as to which the REMIC Administrator has advised it in writing that
an Adverse REMIC Event could occur. The REMIC Administrator may consult with
counsel to make such written advice, and the cost of same shall be borne: (i) if
such action that is not expressly permitted by this Agreement would be of a
material benefit to or otherwise in the best interests of the Certificateholders
as a whole, by the Trust and shall be paid by the Trustee at the direction of
the REMIC Administrator out of amounts on deposit in the Distribution Account;
and (ii) otherwise by the party seeking to take the action not permitted by this
Agreement.
(i) In the event that any tax is imposed on REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV, including, without limitation,
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the
Code, any taxes on contributions to REMIC I or REMIC II, REMIC III, REMIC
IIIU or REMIC IV after the Startup Day pursuant to Section 860G(d) of the
Code, and any other tax imposed by the Code or any applicable provisions
of state or local tax laws (other than any tax permitted to be incurred by
the Special Servicer pursuant to Section 3.17(a)), such tax, together with
all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid
by: (i) the REMIC Administrator, if such tax arises out of or results from
a breach by the REMIC Administrator of any of its obligations under this
Article X; (ii) the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations under 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 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; or (v) the 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. Any
such amounts payable by the Trust in respect of taxes shall be paid by the
Trustee at the direction of the REMIC Administrator out of amounts on
deposit in the Distribution Account.
(h) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I, REMIC II, REMIC III, REMIC IIIU and
REMIC IV on a calendar year and on an accrual basis. Such records with respect
to REMIC I shall include, for each Distribution Date, (i) the applicable
Uncertificated Principal Balance, REMIC I Remittance Rate and each category of
distribution on or with respect to the REMIC I Regular Interests. Such records
with respect to REMIC II shall include, for each Distribution Date, (i) the
applicable Uncertificated Principal Balance, REMIC II Remittance Rate, Class MX
Notional Amount, Class MX Pass-Through Rate, and each category of distribution
on or with respect to the REMIC II Uncertificated Regular Interests and (ii) the
Certificate Principal Balances, the Pass-Through Rates and each category of
distribution on or with respect to the Unaffected REMIC II Certificates. Such
records with respect to REMIC III shall include, for each Distribution Date, (i)
the Class UX Notional Amount, the Class UX Pass-Through Rate and each category
of distribution on or with respect to the Class UX Uncertificated Interest and
(ii) the Certificate Principal Balance, Pass-Through Rate and each category of
distribution on or with respect to the Unaffected REMIC III Certificates. Such
records with respect to REMIC IIIU shall include, for each Distribution Date,
the applicable Uncertificated Principal Balance, REMIC IIIU Remittance Rate, and
each category of distribution on or with respect to the REMIC IIIU
Uncertificated Regular Interests. Such records with respect to REMIC IV shall
include for each Distribution Date, each category of distribution on or with
respect to the REMIC IV Regular Interests.
(i) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC
IV unless it shall have received an Opinion of Counsel (at the expense of the
party seeking to cause such contribution) 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.
(j) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee 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) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default 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, (C)
the bankruptcy of REMIC I, REMIC II, REMIC III, REMIC IIIU or REMIC IV, or (D)
the termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Certificate Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust Fund
(other than a Mortgaged Property acquired through foreclosure, deed-in-lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account or the REO Account); in any event unless it has received an
Opinion of Counsel (from and at the expense of the party seeking to cause such
sale, disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not cause: (x) REMIC I, REMIC II, REMIC III, REMIC IIIU or
REMIC IV to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on REMIC I, REMIC II, REMIC III,
REMIC IIIU or REMIC IV under the REMIC Provisions or other applicable provisions
of federal, state and local law or ordinances.
(k) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I, REMIC II, REMIC III, REMIC
IIIU or REMIC IV will receive a fee or other compensation for services or, to
the extent it is within the control of such Person, permit REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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. At all times as may
be required by the Code, the REMIC Administrator shall make reasonable efforts
to ensure that substantially all of the assets of REMIC I, REMIC II, REMIC III,
REMIC IIIU and REMIC IV will consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
SECTION 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Original Closing Date, all
information or data that the REMIC Administrator reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator in
order to enable it to perform its duties hereunder.
SECTION 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
SECTION 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, 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 defective or 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; (v) if such
amendment, as evidenced by an Opinion of Counsel delivered to the Trustee and
the REMIC Administrator, is reasonably necessary to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to REMIC I,
REMIC II, REMIC III, REMIC IIIU or REMIC IV 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 REMIC I, REMIC II, REMIC III,
REMIC IIIU or REMIC IV; (vi) to modify, add to or eliminate any provisions of
Section 5.02(d)(i), (ii) and (iii); or (vii) for any other purpose; provided
that such amendment (other than any amendment for the specific purposes
described in clauses (v) and (vi) above) shall not, as evidenced by an Opinion
of Counsel obtained by or delivered to the Trustee, adversely affect in any
material respect the interests of any Certificateholder without such
Certificateholder's written consent; and provided further that such amendment
(other than any amendment for any of the specific purposes described in clauses
(i) through (vi) above) shall not result in a downgrade, qualification (if
applicable) or withdrawal of any rating then assigned to any Class of
Certificates by any Rating Agency (as evidenced by written confirmation to such
effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, 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 the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, or (iii) modify the provisions of
this Section 11.01 without the written 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, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any of their
respective Affiliates shall be entitled to the same Voting Rights with respect
to matters described above as they would if any other Person held such
Certificates. For purposes of this Section 11.01(b), a Class of Certificates is
an "affected Class" if and only if it would, as the result of any such
amendment, experience any of the effects described in clauses (i), (ii) and
(iii) of this Section 11.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), the Agreement shall be
amended 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, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Conduit Mortgage Loans or Portfolio Mortgage Loans, (iii) to make in connection
with any such restructuring one or more additional REMIC elections with respect
to the Trust Fund, (iv) to provide for the book-entry registration of any such
existing or newly created classes of Certificates, and (v) to provide for any
holders of any Classes of Non-Registered Certificates remaining as such after
giving effect to such amendment to receive or have the right to request to
receive any statements, reports or other information which the holders of the
Class G, Class H, Class K, Class L, Class M and Class N Certificates are
entitled to receive or request to receive under this Agreement. For purposes of
this Section 11.01(c), a Class of Certificates is an "affected Class" if and
only if it would, as the result of any such amendment, experience any of the
effects described in clauses (i), (ii) and (iii) of Section 11.01(b). Any
restructuring pursuant to this Section 11.01(c) shall require the prior written
approval of each Rating Agency and confirmation of the ratings of each such
Class of Certificates (taking into account such restructuring), including
confirmation that such restructuring will not result in the downgrade,
qualification (if applicable) or withdrawal of the ratings then assigned to the
Class G, Class H, Class J, Class K, Class L, Class M and Class N Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on REMIC I, REMIC II, REMIC III, REMIC IIIU or
REMIC IV pursuant to the REMIC Provisions or cause REMIC I, REMIC II, REMIC III,
REMIC IIIU or REMIC IV to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder.
(f) 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; provided that such
consents shall be in writing.
(g) 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.
(h) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
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 (d) shall be payable out of the Distribution Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders. It is acknowledged that the Trustee has no obligation
to monitor whether such recordation in necessary under this section.
(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, 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, 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 (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 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (1) in the case of the Depositor, Banc of
America Commercial Mortgage Inc., Bank of America Corporate Center, 100 North
Tryon Street, Charlotte, North Carolina 28255 Attention: David A. Gertner,
telecopy number: (704) 386-1094 (with copies to Tia I. Cottey, Esq., Assistant
General Counsel, Bank of America Corporation, Bank of America Corporate Center,
100 North Tryon Street (20th Floor), Charlotte, North Carolina 28255, telecopy
number: (704) 387-0922; (2) in the case of the Mortgage Loan Seller, Bank of
America, N.A., Bank of America Corporate Center, NC1-007-07-01, 100 North Tryon
Street, Charlotte, North Carolina 28255, Attention: David Gertner, telecopy
number: (704) 386-1904; (3) in the case of the Master Servicer, Midland Loan
Services, Inc., 210 W. 10th Street, Kansas City, Missouri 64108, Attention:
Chief Executive Officer, telecopy number (816) 435-2326; (4) in the case of the
Special Servicer, GMAC Commercial Mortgage Corporation, 550 California Street,
12th Floor, San Francisco, California 94104, Attention: Henry Bieber, telecopy
number (415) 391-2949; (5) in the case of the Trustee and REMIC Administrator,
Wells Fargo Bank Minnesota, N.A., 11000 Broken Land Parkway, Columbia, Maryland
21044-3562, Attention: Corporate Trust Services (CMBS), Banc of America
Commercial Mortgage Inc., Series 2000-1, telecopy number (410) 884-2360; and (6)
in the case of the Rating Agencies, (A) Moody's Investors Service, Inc., 99
Church Street, New York, New York 10007, Attention: Commercial MBS Monitoring
Department, telecopy number (212) 553-0300; (B) Standard & Poor's Ratings
Services, Inc., 55 Water Street, 41st Floor, New York, New York 10041-0003,
Attention: Commercial Mortgage Group Surveillance Manager, telecopy number (212)
438-2662, 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 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. Except
as specifically contemplated by Sections 3.22, 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08 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 11.09 Notices to and from 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 hereunder that has
not been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan
Seller pursuant to Section 2.03.
(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 the appointment
of a successor;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any material casualty at or condemnation or eminent domain
proceeding in respect of a Mortgaged Property;
(v) the vacating by an anchor tenant of a retail Mortgaged
Property; and
(vi) the addition or substitution of collateral for any Mortgage
Loan.
(c) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(b), each of the
Master Servicer and the Special Servicer shall promptly furnish to each Rating
Agency copies or summaries (in such format as will be acceptable to the Rating
Agency) of any of the written reports (including, without limitation, reports
regarding property inspections) prepared, and any of the quarterly and annual
operating statements, rent rolls and financial statements collected, by it
pursuant to Section 3.12(b).
(d) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the Regular Certificates required by the
first paragraph of Section 4.02(a).
(e) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, or a Class G, Class H, Class
K, Class L, Class M, and Class N Certificateholder (if requested by such
Holder), by any of the Trustee, the Master Servicer or the Special Servicer
pursuant to this Section 11.09, shall be so delivered or otherwise made
available through an electronic medium.
(f) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
(g) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Mortgage
Loan such information as the Rating Agency shall reasonably request and which
the Trustee, the Master Servicer or the Special Servicer can reasonably provide
in accordance with applicable law and without waiving any attorney-client
privilege relating to such information. The Trustee, the Master Servicer and the
Special Servicer, as applicable, may include any reasonable disclaimer they deem
appropriate with respect to such information.
SECTION 11.10 Requests for Information; Standing Requests.
(a) Any Holder of a Class G, Class H, Class K, Class L, Class M, or
Class N Certificate, at its expense, shall be entitled to, upon request to the
Master Servicer, or to the Special Servicer, as applicable, receive a copy from
the Master Servicer, or from the Special Servicer, as applicable, of any notice
or report to be delivered by such Servicer hereunder to the Directing
Certificateholder, except to the extent that the Trustee is required to deliver
such information to such Certificateholders pursuant to the terms of this
Agreement.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, or any Holder of a Class G, Class H, Class K, Class L, Class
M or Class N Certificate, is stated herein to be entitled to obtain from the
Master Servicer or the Special Servicer, upon request, any particular report or
other item of information obtained or prepared with respect to the Mortgage
Loans by the parties to this Agreement in the course of their performance
hereof, such request by such Person may take the form of a standing request to
the Master Servicer or the Special Servicer, as the case may be, to receive all
such reports or items until further notice.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Depositor
By: /s/: James E. Naumann
------------------------------------
Name: James E. Naumann
Title: Senior Vice President
BANK OF AMERICA, N.A.,
Mortgage Loan Seller
By: /s/: James E. Naumann
-------------------------------
Name: James E. Naumann
Title: Senior Vice President
MIDLAND LOAN SERVICES, INC.,
Master Servicer
By: /s/: Lawrence D. Ashley
-------------------------------
Name: Lawrence D. Ashley
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
By: /s/: Henry J. Bieber
-------------------------------
Name: Henry J. Bieber
Title: Senior Vice President
WELLS FARGO BANK MINNESOTA, N.A.
Trustee and REMIC Administrator
By: /s/: Leslie A. Gaskill
-------------------------------
Name: Leslie A. Gaskill
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of September, 2000, before me, a notary public in and for said
State, personally appeared James E. Naumann known to me to be a Senior Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. and the Managing Director
of BANK OF AMERICA, N.A., two of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entities, and acknowledged to me that such person executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/: Cheryl D. Faust
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 19, 2001
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 25th day of September , 2000, before me, a notary public in and for said
State, personally appeared Lawrence D. Ashley known to me to be a Senior Vice
President of MIDLAND LOAN SERVICES, INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entities, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/: Jill Ann Palmer
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
June 16, 2002
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of September , 2000, before me, a notary public in and for said
State, personally appeared Leslie A. Gaskill, known to me to be a Vice President
of WELLS FARGO BANK MINNESOTA, N.A. which executed the within instrument, and
also known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/: Jack A. Aini
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
June 9, 2001
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 22nd day of September , 2000, before me, a notary public in and for said
State, personally appeared Henry J. Bieber, known to me to be a Senior Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, which executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such person executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/: Lisa L. Connolly
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 8, 2002
EXHIBIT A-1
FORM OF CLASS A-1A CERTIFICATE
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
7.1090% per annum this Certificate as of the Issue
Date:
$_________________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class A-1A Certificates as
of the Issue Date: $ 153,230,577
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
"Initial Pool Balance"):
Master Servicer: $771,179,585
Midland Loan Services, Inc.
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-1A-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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
FORM OF CLASS A-2A CERTIFICATE
CLASS A-2A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class A-2A Certificates as
of the Issue Date: $ 299,000,640
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-2A-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2A Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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-3
FORM OF CLASS A-1B CERTIFICATE
CLASS A-1B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
6.8010% this Certificate as of the Issue
Date: $________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class A-1B Certificates as
of the Issue Date: $ 55,591,451
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-1B-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1B Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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
FORM OF CLASS A-2B CERTIFICATE
CLASS A-2B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class A-2B Certificates as
of the Issue Date: $ 38,390,866
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-2B-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2B Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 A-3B CERTIFICATE
CLASS A-3B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $_________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class A-3B Certificates as
of the Issue Date: $ 19,967,220
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. A-3B-1 CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3B Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of
Variable this Certificate as of the Issue
Date: $__________________
Date of Amended and Restated Second Amended
and Restated Pooling and Servicing Class Notional Amount of all the
Agreement: Class X Certificates as of the
September 1, 2000 Issue Date: $ 771,179,585
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. X-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH 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 Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Second Amended and Restated Pooling and Servicing Agreement, dated
as specified above (the "Agreement"), among Banc of America Commercial Mortgage
Inc. (successor in interest to NationsLink Funding Corporation), as Depositor,
and the Mortgage Loan Seller, Master Servicer, Special Servicer, Trustee and
REMIC Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class B Certificates as of
the Issue Date: $ 40,999,766
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. B-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $__________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class C Certificates as of
the Issue Date: $ 35,142,657
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. C-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $___________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class D Certificates as of
the Issue Date: $ 11,714,219
Commencement Date: September 1, 2000
Issue Date: September 27, 2000 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the
October 16, 2000 Commencement Date, after
deducting payments of principal
Master Servicer: due on or before such date (the
Midland Loan Services, Inc. "Initial Pool Balance"):
$771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. D-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $_________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Class Principal Balance of all
September 1, 2000 the Class E Certificates as of
the Issue Date: $27,333,177
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. E-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Second Amended and Restated Pooling Class Principal Balance of all
and Servicing Agreement: the Class F Certificates as of
September 1, 2000 the Issue Date: $11,714,219
Commencement Date: September 1, 2000
Approximate Aggregate unpaid
Issue Date: September 27, 2000 principal balance of the
Mortgage Pool as of the
First Distribution Date: Commencement Date, after
October 16, 2000 deducting payments of principal
due on or before such date (the
Master Servicer: "Initial Pool Balance"):
Midland Loan Services, Inc. $771,179,585
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. F-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC. (SUCCESSOR IN INTEREST TO NATIONSLINK FUNDING
CORPORATION), BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A., MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Second
Amended and Restated Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), as Depositor, and the Mortgage
Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
6.85% per annum this Certificate as of the Issue
Date: $____________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: September 1, 2000 Class Principal Balance of all
the Class G Certificates as of
Commencement Date: Setember 1, 2000 the Issue Date: $11,714,219
Issue Date: February 16, 2000 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Original
March 15, 2000 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial
Midland Loan Services, Inc. Pool Balance"): $780,947,924
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. G-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 16, 2000, AND BASED ON ITS ISSUE PRICE OF
72.81405%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0% CPR AS TO
THE CONDUIT MORTGAGE LOANS AND 6% CPR AS TO THE PORTFOLIO MORTGAGE LOANS: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 27.22401111%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 11.51%; AND (III) THE
AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL PERIOD (FEBRUARY 16, 2000 TO MARCH 15,
2000) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
COMPUTED USING THE EXACT METHOD, IS APPROXIMATELY 0.11882632%.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
or REMIC III 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Book- Remaining Principal Amount Notation
Date Entry Certificate of Book-Entry Certificate Made By
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- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
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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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
6.85% per annum this Certificate as of the Issue
Date: $_________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: September 1, 2000 Class Principal Balance of all
the Class H Certificates as of
Commencement Date: Setember 1, 2000 the Issue Date: $19,523,698
Issue Date: February 16, 2000 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Original
March 15, 2000 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial
Midland Loan Services, Inc. Pool Balance"): $780,947,924
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. H-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 16, 2000, AND BASED ON ITS ISSUE PRICE OF
70.59334%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0% CPR AS TO
THE CONDUIT MORTGAGE LOANS AND 6% CPR AS TO THE PORTFOLIO MORTGAGE LOANS: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 29.44471111%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 11.99%; AND (III) THE
AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL PERIOD (FEBRUARY 16, 2000 TO MARCH 15,
2000) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
COMPUTED USING THE EXACT METHOD, IS APPROXIMATELY 0.12508533%.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
or REMIC III 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Book- Remaining Principal Amount Notation
Date Entry Certificate of Book-Entry Certificate Made By
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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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
6.85% per annum this Certificate as of the Issue
Date: $______________
Date of Second Amended and Restated Pooling
and Servicing Agreement: September 1, 2000 Class Principal Balance of all
the Class K Certificates as of
Commencement Date: September 1, 2000 the Issue Date: $3,904,740
Issue Date: February 16, 2000 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Original
March 15, 2000 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial
Midland Loan Services, Inc. Pool Balance"): $780,947,924
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. K-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 16, 2000, AND BASED ON ITS ISSUE PRICE OF
66.42204%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0% CPR AS TO
THE CONDUIT MORTGAGE LOANS AND 6% CPR AS TO THE PORTFOLIO MORTGAGE LOANS: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 33.61601111%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.94%; AND (III) THE
AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL PERIOD (FEBRUARY 16, 2000 TO MARCH 15,
2000) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
COMPUTED USING THE EXACT METHOD, IS APPROXIMATELY 0.13524000.
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF 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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
or REMIC III 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Book- Remaining Principal Amount Notation
Date Entry Certificate of Book-Entry Certificate Made By
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $_________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Setember 1, 2000 Class Principal Balance of all
the Class L Certificates as of
Commencement Date: September 1, 2000 the Issue Date: $15,618,958
Issue Date: September 27, 2000 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Original
January 17, 2000 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial
Midland Loan Services, Inc. Pool Balance"): $780,947,924
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. L-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 27, 2000, AND BASED ON ITS ISSUE PRICE
OF 54.81733%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 6 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0% CPR AS TO
THE CONDUIT MORTGAGE LOANS AND 6% CPR AS TO THE PORTFOLIO MORTGAGE LOANS: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 45.28266667%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 14.26%; AND (III) THE
AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 27, 2000 TO JANUARY
15, 2000) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
COMPUTED USING THE EXACT METHOD, IS APPROXIMATELY 0.12055054%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Book- Remaining Principal Amount Notation
Date Entry Certificate of Book-Entry Certificate Made By
- ------- -------------------------------------- -------------------------- --------
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- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Setember 1, 2000 Class Principal Balance of all
the Class M Certificates as of
Commencement Date: September 1, 2000 the Issue Date: $7,809,479
Issue Date: September 27, 2000 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Original
January 17, 2000 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial
Midland Loan Services, Inc. Pool Balance"): $780,947,924
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. M-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON DECEMBER 21, 1999, AND BASED ON ITS ISSUE PRICE OF
48.07433%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 6 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0% CPR AS TO
THE CONDUIT MORTGAGE LOANS AND 6% CPR AS TO THE PORTFOLIO MORTGAGE LOANS: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 52.02566667%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 15.55%; AND (III) THE
AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL PERIOD (DECEMBER 21, 1999 TO JANUARY
15, 2000) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
COMPUTED USING THE EXACT METHOD, IS APPROXIMATELY 0.09780767%. THIS CERTIFICATE
MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE
RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER FROM THE PROPOSED
PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY
TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED
PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION
3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH
IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS
BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER,
THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF
A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II)
ABOVE.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Book- Remaining Principal Amount Notation
Date Entry Certificate of Book-Entry Certificate Made By
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $________________
Date of Second Amended and Restated Pooling
and Servicing Agreement: Setember 1, 2000 Class Principal Balance of all
the Class N Certificates as of
Commencement Date: September 1, 2000 the Issue Date: $19,523,699
Issue Date: December 21, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Original
January 17, 2000 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial
Midland Loan Services, Inc. Pool Balance"): $780,947,924
Trustee and REMIC Administrator:
Special Servicer: Wells Fargo Bank Minnesota, N.A.
GMAC Commercial Mortgage Corporation
Mortgage Loan Seller:
Bank of America, N.A.
Certificate No. N-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
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 NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON DECEMBER 21, 1999, AND BASED ON ITS ISSUE PRICE OF
26.89333%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 6 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF 0% CPR AS TO
THE CONDUIT MORTGAGE LOANS AND 6% CPR AS TO THE PORTFOLIO MORTGAGE LOANS: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY 73.20666667%; (II) THE ANNUAL YIELD TO MATURITY OF
THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 24.70%; AND (III) THE
AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL PERIOD (DECEMBER 21, 1999 TO JANUARY
15, 2000) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
COMPUTED USING THE EXACT METHOD, IS APPROXIMATELY 0.04188154%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
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 CODE.
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 Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. 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 appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class 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 Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
By:_______________________________________
Authorized Officer
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Book- Remaining Principal Amount Notation
Date Entry Certificate of Book-Entry Certificate Made By
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
- ------- -------------------------------------- -------------------------- --------
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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-18
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Second Amended and Restated Pooling
and Servicing Agreement: Setember 1, 2000 Certificate No. R-I-___
Percentage Interest evidenced by
Commencement Date: September 1, 2000 this Certificate in the related
Class: ____%
Issue Date: December 21, 1999
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
January 17, 2000 Mortgage Pool as of the Original
Cut-off Date, after deducting
Master Servicer: payments of principal due on or
Midland Loan Services, Inc. before such date (the "Initial
Pool Balance"): $780,947,924
Special Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Seller:
Bank of America, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
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, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY 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 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 Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon 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 pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
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, 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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 the Trustee 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 Trustee under clause (ii)(B) of such Section 5.02(d) 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
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator 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 C-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 the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
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 herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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 Federal Home Loan Mortgage Corporation, a majority of whose 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 of the Code and
(v) any other Person so designated by the REMIC Administrator 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of 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 Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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-19
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Second Amended and Restated Pooling Certificate No. R-II - __
and Servicing Agreement: Setember 1, 2000
Commencement Date: September 1, 2000 Percentage Interest evidenced by
this Certificate in the related
Issue Date: December 21, 1999 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
January 17, 2000 principal balance of the
Mortgage Pool as of the Original
Master Servicer: Cut-off Date, after deducting
Midland Loan Services, Inc. payments of principal due on or
before such date (the "Initial
Pool Balance"): $780,947,924
Special Servicer:
GMAC Commercial Mortgage Corporation Trustee and REMIC Administrator:
Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Seller
Bank of America, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
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, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. 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 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 Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon 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 pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
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, 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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 the Trustee 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 Trustee under clause (ii)(B) of such Section 5.02(d) 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
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator 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 C-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 the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
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 herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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 Federal Home Loan Mortgage Corporation, a majority of whose 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 of the Code and
(v) any other Person so designated by the REMIC Administrator 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of 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 Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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-20
FORM OF CLASS R-III CERTIFICATE
CLASS R-III COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Second Amended and Restated Pooling Certificate No. R-III - __
and Servicing Agreement: September 1, 2000
Commencement Date: September 1, 2000 Percentage Interest evidenced by
this Certificate in the related
Issue Date: February 16, 2000 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
March 15, 2000 principal balance of the
Mortgage Pool as of the Original
Master Servicer: Cut-off Date, after deducting
Midland Loan Services, Inc. payments of principal due on or
before such date (the "Initial
Pool Balance"): $780,947,924
Special Servicer:
GMAC Commercial Mortgage Corporation Trustee and REMIC Administrator:
Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Seller
Bank of America, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
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, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. 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 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 Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon 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 pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
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, 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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 the Trustee 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 Trustee under clause (ii)(B) of such Section 5.02(d) 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
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator 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 C-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 the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
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 herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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 Federal Home Loan Mortgage Corporation, a majority of whose 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 of the Code and
(v) any other Person so designated by the REMIC Administrator 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of 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 Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
or REMIC III 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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-21
FORM OF CLASS R-IIIU CERTIFICATE
CLASS R-IIIU COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Second Amended and Restated Pooling Certificate No. R-IIIU-__
and Servicing Agreement: September 1, 2000
Commencement Date: September 1, 2000 Percentage Interest evidenced by
this Certificate in the related
Issue Date: September 27, 2000 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
October 16, 2000 principal balance of the
Mortgage Pool as of the
Master Servicer: Commencement Date, after
Midland Loan Services, Inc. deducting payments of principal
due on or before such date (the
"Initial Pool Balance"):
$771,179,585
Special Servicer:
GMAC Commercial Mortgage Corporation Trustee and REMIC Administrator:
Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Seller
Bank of America, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
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, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. 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 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 Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon 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 pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
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, 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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 the Trustee 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 Trustee under clause (ii)(B) of such Section 5.02(d) 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
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator 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 C-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 the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
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 herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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 Federal Home Loan Mortgage Corporation, a majority of whose 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 of the Code and
(v) any other Person so designated by the REMIC Administrator 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of 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 Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-IIIU Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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-22
FORM OF CLASS R-IV CERTIFICATE
CLASS R-IV COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2000-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Second Amended and Restated Pooling Certificate No. R-IV-__
and Servicing Agreement: September 1, 2000
Commencement Date: September 1, 2000 Percentage Interest evidenced by
this Certificate in the related
Issue Date: September 27, 2000 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
October 16, 2000 principal balance of the
Mortgage Pool as of the
Master Servicer: Commencement Date, after
Midland Loan Services, Inc. deducting payments of principal
due on or before such date (the
"Initial Pool Balance"):
$771,179,585
Special Servicer:
GMAC Commercial Mortgage Corporation Trustee and REMIC Administrator:
Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Seller
Bank of America, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, BANK OF AMERICA, N.A., WELLS FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
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, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. 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 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 Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon 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 pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in 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 Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
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, 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 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, the Certificates
are exchangeable for new Certificates of the same Class 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 Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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 the Trustee 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 Trustee under clause (ii)(B) of such Section 5.02(d) 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
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator 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 C-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 the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
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 herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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 Federal Home Loan Mortgage Corporation, a majority of whose 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 of the Code and
(v) any other Person so designated by the REMIC Administrator 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of 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 Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 Initial Pool Balance 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 Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II,
REMIC III, REMIC IIIU or REMIC IV 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 that are applicable to agreements negotiated, 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 Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank Minnesota, N.A.,
as Trustee
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-IV Certificates referred to in the
within-mentioned Agreement.
Dated:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
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 the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of 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 B
FORM OF INVESTMENT REPRESENTATION LETTER
Wells Fargo Bank Minnesota, N.A.,
Wells Fargo Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc. 2000-1 MAC # N9303-121
Banc of America Commercial Mortgage Inc.
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Second
Amended and Restated Pooling and Servicing Agreement dated as of September 1,
2000 (the "Pooling and Servicing Agreement"), by and among Banc of America
Commercial Mortgage Inc. (successor in interest to NationsLink Funding
Corporation), as Depositor, Bank of America, N.A., as Mortgage Loan Seller,
Midland Loan Services, Inc., as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, and Wells Fargo Bank Minnesota, N.A., as
Trustee on behalf of the holders of Banc of America Commercial Mortgage Inc.
(successor in interest to NationsLink Funding Corporation), Commercial Mortgage
Pass-Through Certificates, Series 2000-1 (the "Certificates"), in connection
with the transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
- ----------
* Purchaser must include one of the following two certifications.
[_] The Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act of 1933, as
amended (the "1933 Act")) and has such knowledge and
experience in financial and business matters as to be capable
of evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it
is acting are each able to bear the economic risk of the
Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account
or for one or more accounts (each of which is an
"institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs
incurred by it in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the
Securities Act of 1933, as amended (the "1933 Act") The
Purchaser is aware that the transfer is being made in reliance
on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act,
pursuant to any other exemption from the registration requirements of the 1933
Act, subject in the case of this clause (ii) to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act, (y) the receipt by the Certificate Registrar of
such other evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of the Purchaser's investment intent (or intent to resell
to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:*
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9
(or successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed
copies of IRS Form 4224 (or successor form), which identify
such Purchaser as the beneficial owner of the Certificate and
state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to
be, effectively connected with a U.S. trade or business. The
Purchaser agrees to provide to the Certificate Registrar
updated IRS Forms W-8 or IRS Forms 4224, as the case may be,
any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership (except to the
extent provided in applicable Treasury regulations) or other entity created or
organized in or under the laws of the United States or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation regardless of its source or a trust if a court within the United States
is able to exercise primary supervision over the administration of such trust,
and one or more United States fiduciaries have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which were
eligible to elect to be treated as U.S. persons).
8. Please make all payments due on the Certificates:**
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* Each Purchaser must include one of the two alternative certifications.
** Only to be filled out by Purchasers of Definitive Certificates. Please select
(a) or (b). For holders of Definitive Certificates, wire transfers are only
available if such holder's Definitive Certificates have an aggregate Certificate
Balance or Notional Amount, as applicable, of at least U.S. $5,000,000.
(a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate
facilities therefor:
Bank:
____________________________________
ABA#:
____________________________________
Account #:
____________________________________
Attention:
____________________________________
(b) by mailing a check or draft to the following address:
Very truly yours,
_______________________________________
[The Purchaser]
By: _________________________________
Name:
Title:
Dated:
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(D)(I)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of America
Commercial Mortgage Inc. (successor in interest to NationsLink Funding
Corporation) Class R-[I], [II], [III], [IIIU] and [IV] Commercial Mortgage
Pass-Through Certificates, Series 2000-1, evidencing a ____% Percentage Interest
in the Class to which it belongs (the "Residual Certificates")), a
__________________________________ duly organized and validly existing under the
laws of [the State of ____] [the United States], on behalf of which he/she makes
this affidavit. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Residual Certificate was issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will be] a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificate, and (ii) is acquiring the Residual
Certificate for its own account or for the account of another prospective
transferee 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:
(i) a "disqualified organization" means the United States or a possession
thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income); and (ii) a "non-United States person" is any person other than
a "United States person". A "United States person" is a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
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. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to "disqualified organizations" under the
Internal Revenue Code of 1986, as amended; (ii) that such tax would be imposed
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a "disqualified organization", 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 Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulation ss.1.860E-1(c) and that the
transferor of a "non-economic 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. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a "disqualified organization" 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. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee 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 Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
______________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a person other than the Transferee, in the event that the Transferee holds such
Residual Certificate in violation of Section 5.02(d)), and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificate is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 2000.
[NAME OF TRANSFEREE]
By:
_______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
____________________________
[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 the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________, 2000.
NOTARY PUBLIC
COUNTY OF ____________
STATE OF _____________
My Commission expires the _________ day of _____________, 2000.
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(D)(I)(D)
__________________, 20___
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth & Marquette
Minneapolis, MN 55745
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc. 2000-1 MAC # N9303-121
Re: Banc of America Commercial Mortgage Inc. (successor in
interest to NationsLink Funding Corporation), Commercial
Mortgage Pass-Through Certificates, Series 2000-1, Class
R-[I], [II] and [III], evidencing a __% percentage interest in
the Class to which it belongs
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], [II], [III], [IIIU] and [IV] Certificates (the
"Residual Certificates"), pursuant to Section 5.02 of the Second Amended and
Restated Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of September 1, 2000, among Banc of America Commercial
Mortgage Inc. (successor in interest to NationsLink Funding Corporation), as
Depositor, Bank of America, N.A., as Mortgage Loan Seller, Midland Loan
Services, Inc., as Master Servicer, GMAC Commercial Mortgage Corporation, as
Special Servicer, and Wells Fargo Bank Minnesota, N.A., as Trustee and REMIC
Administrator. All terms used herein and not otherwise defined shall have the
respective 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
Residual Certificate 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 C-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 Regulations 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 Residual Certificate may not be respected for United States federal income
tax purposes (and the Transferor may continue to be liable for United States
federal income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
__________________________________
(Transferor)
By:
_____________________________
Name:
________________________
Title:
_______________________
EXHIBIT D
REQUEST FOR RELEASE
____________________, 20___
Wells Fargo Bank Minnesota, N.A.
1015 10th Ave. S.E.
Minneapolis, MN 55414
Attn: Corporate Trust Services (CMBS) -Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates Series 2000-1
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Second Amended and Restated
Pooling and Servicing Agreement dated as of September 1, 2000 (the "Pooling and
Servicing Agreement"), by and among Banc of America Commercial Mortgage Inc.
(successor in interest to NationsLink Funding Corporation), as Depositor, Bank
of America, N.A., as Mortgage Loan Seller, Midland Loan Services, Inc., as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, and
you, as Trustee and REMIC Administrator, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name:
---------------------------------------------
Address:
----------------------------------------------------
Loan No.:
---------------------------------------------------
If only particular documents in the Mortgage File are requested, please specify
which:
- ------------------------------------------------------------------------------
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned 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. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is 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.
MIDLAND LOAN SERVICES, INC..
By:
-------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT E
FORM OF REO STATUS REPORT
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Operating Information Reflected As NOI______ or NCF________
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P4 P7 P13 P9 P10 P16 OR P17 L8
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SHORT NAME (WHEN
PROPERTY ID APPROPRIATE) PROPERTY TYPE CITY STATE SQ FT OR UNITS PAID THRU DATE
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REO' s data reflected at the property level for relationships with more than one
(1) property should use the Allocated Loan Amount, and prorate all advances and
expenses or other loan level data as appropriate.
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(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value.
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P4 P21 L37 L39 L38 L25
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(a) (b) (c) (d) (e)=a+b+c+d
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OTHER EXPENSE TOTAL T & I
ALLOCATED LOAN TOTAL P&I ADVANCES ADVANCE ADVANCE CURRENT MONTHLY
PROPERTY ID AMOUNT OUTSTANDING OUTSTANDING OUTSTANDING TOTAL EXPOSURE P&I
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P4 L11 P53 OR P74 P58 OR P72/P79 OR P24 P25
P83
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(f) (g)
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APPRAISAL BPO OR APPRAISAL
LTM NOI/NCF INTERNAL VALUE BPO OR
PROPERTY ID MATURITY DATE DATE LTM DSCR (NOI/NCF) VALUATION DATE SOURCE (1) INTERNAL VALUE
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P4 L35 L77 P28 P26
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(h)=(.90*g) - e
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DATE ASSET
LOSS USING 90% TOTAL APPRAISAL REO ACQUISITION EXPECTED TO BE
PROPERTY ID APPR. OR BPO (F) REDUCTION REALIZED TRANSFER DATE DATE RESOLVED COMMENTS
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REO STATUS REPORT
- ------------------------ ------------------ ---------------- ------------ ------------- ---------------- ------------
Prospectus ID Property Name Property Type City State Sq Ft or Units Paid Thru
Date
- ------------------------ ------------------ ---------------- ------------ ------------- ---------------- ------------
- ------------------------ -------------------- ----------------------- ----------------------- --------------------
Prospectus ID Ending Scheduled Total P&I Advances to Total Expenses to Date Other Advances
Balance Date (Taxes & Insurance)
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- ------------------------ ------------------- ---------------------- ---------------- -------------- ------------ -------------
Prospectus ID Total Exposure Current Monthly P&I Maturity Date LTM NOI Date LTM NOI LTM DSCR
- ------------------------ ------------------- ---------------------- ---------------- -------------- ------------ -------------
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Prospectus ID Cap Rate Assigned Valuation/
*** Appraisal Date
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REO STATUS REPORT
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Prospectus ID Property Name Property Type City Value using NOI & Appraisal / BPO or
Cap Rate Internal Value
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Prospectus ID Loss Using 92% Estimated Recovery % Total Appraisal Special Servicing
Appraisal or BPO Reduction Realized Transfer Date
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Prospectus ID REO Acquisition Date Pending Resolution Comments
Date
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EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Wells Fargo Bank Minnesota, N.A.
Wells Fargo Center
Sixth & Marquette
Minneapolis, MN 55479
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage Inc.
2000-1-MAC # N9303-121
Banc of America Commercial Mortgage Inc.
100 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Re: Transfer of Banc of America Commercial Mortgage Inc.
(successor in interest to NationsLink Funding Corporation),
Commercial Mortgage Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.
(successor in interest to NationsLink Funding Corporation), Commercial Mortgage
Pass-Through Certificates, Series 2000-1, Class __ (the "Certificate") issued
pursuant to that Second Amended and Restated Pooling and Servicing Agreement,
dated as of September 1, 2000 (the "Pooling and Servicing Agreement"), by and
among Banc of America Commercial Mortgage Inc. (successor in interest to
NationsLink Funding Corporation), as depositor (the "Depositor"), Bank of
America, N.A., as mortgage loan seller, Midland Loan Services, Inc., as master
servicer (the "Master Servicer"), GMAC Commercial Mortgage Corporation, as
special servicer (the "Special Servicer") and Wells Fargo Bank Minnesota, N.A.,
as trustee (the "Trustee"). Capitalized terms used and not otherwise defined
herein have the respective meanings ascribed to such terms in the Pooling and
Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by any such Plan and the application of
Department of Labor Regulation ss. 2510.3-101), other than an insurance company
using the assets of its general account under circumstances whereby the purchase
and holding of Offered Private Certificates by such insurance company would be
exempt from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an opinion of counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law (without
regard to the identity or nature of the other Holders of Certificates of any
Class), will not constitute or result in a "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Placement Agents or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Underwriter, the Placement Agent, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
_______________________________________
[The Purchaser]
By: _________________________________
Name:
Title:
EXHIBIT G
FORM OF INTERIM CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
as Depositor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Bank of America, N.A.,
as Mortgage Loan Seller
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Midland Loan Services, Inc.,
210 W. 10th Street
Kansas City, MO 64108
Re: Second Amended and Restated Pooling and Servicing Agreement
dated as of September 1, 2000 (the "Agreement") among Banc of
America Commercial Mortgage Inc. (successor in interest to
NationsLink Funding Corporation), as Depositor, Bank of
America, N.A., as Mortgage Loan Seller, Midland Loan Services,
Inc., as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 2000-1
Ladies and Gentlemen:
Pursuant to Section 2.02 of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in clauses (i) through (iii), (ix) and, if the Mortgage Loan Schedule specifies
that the related Mortgagor has a leasehold interest in the related Mortgaged
Property, (xiii) of the definition of "Mortgage File" are in its possession or
the possession of a Custodian on its behalf, or the Mortgage Loan Seller has
otherwise satisfied the delivery requirements in respect of such documents in
accordance with Section 2.01(c), (ii) all documents received by it or any
Custodian in respect of such Mortgage Loan have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iv) through (viii),
(x) through (xii) and (xiv) through (xx) of the definition of "Mortgage File"
exist or are required to be delivered by the Mortgage Loan Seller in respect of
any Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the related Agreement.
Respectfully,
[Name]
[Title]
cc: Robert W. Long, Esq., Assistant General Counsel, Bank of America Corporation
EXHIBIT H
FORM OF FINAL CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
as Depositor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Bank of America, N.A.,
as Mortgage Loan Seller
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Midland Loan Services, Inc.,
as Master Servicer
210 W. 10th Street
Kansas City, MO 64108
Re: Second Amended and Restated Pooling and Servicing Agreement
dated as of September 1, 2000 (the "Agreement") among Banc of
America Commercial Mortgage Inc. (successor in interest to
NationsLink Funding Corporation), as Depositor, Bank of
America, N.A., as Mortgage Loan Seller, Midland Loan Services,
Inc., as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 2000-1
Ladies and Gentlemen:
Pursuant to Section 2.02 of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in clauses (i), (ii), (ix) and, if the Mortgage Loan Schedule specifies that the
related Mortgagor has a leasehold interest in the related Mortgaged Property,
(xiii) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf, or the Mortgage Loan Seller has
otherwise satisfied the delivery requirements in respect of such documents in
accordance with Section 2.01(c), (ii) it or a Custodian on its behalf has
received either the original or copy of each of the assignments specified in
clauses (iii) and (v) of the definition of "Mortgage File" that were delivered
by the Mortgage Loan Seller with evidence of recording thereon, (iii) all
documents received by it or any Custodian in respect of such Mortgage Loan have
been reviewed by it or by such Custodian on its behalf and appear regular on
their face and relate to such Mortgage Loan, and (iv) based on the examinations
referred to in Section 2.02 (b) and Section 2.02(c) and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct, and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iv) through (viii),
(x) through (xii) and (xiv) through (xx) of the definition of "Mortgage File"
exist or are required to be delivered by the Mortgage Loan Seller in respect of
any Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the related Agreement.
Respectfully,
[Name]
[Title]
cc: Robert W. Long, Esq., Assistant General Counsel, Bank of America Corporation
EXHIBIT I
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(inclds. Retail/Office/Whs/Mixed use)
as of MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
- ------------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID
- ------------------------------------------------------------------------------------------------------------------------------------
Current Scheduled Loan Balance
/Paid to Date Current Allocated Loan Amount %
- ------------------------------------------------------------------------------------------------------------------------------------
Property Name
- ------------------------------------------------------------------------------------------------------------------------------------
Property Type
- ------------------------------------------------------------------------------------------------------------------------------------
Property Address, City, State
- ------------------------------------------------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds USE SECOND BOX TO SPECIFY SQ FT.,UNITS...
- ------------------------------------------------------------------------------------------------------------------------------------
Year Built/Year Renovated
- ------------------------------------------------------------------------------------------------------------------------------------
Cap Ex Reserve (annually)/per SPECIFY ANNUAL/PER UNIT...
Unit.etc. (1)
- ------------------------------------------------------------------------------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
- ------------------------------------------------------------------------------------------------------------------------------------
Occupancy Rate (physical)
- ------------------------------------------------------------------------------------------------------------------------------------
Occupancy Date
- ------------------------------------------------------------------------------------------------------------------------------------
Average Rental Rate
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(1) TOTAL $ AMOUNT OF CAPITAL RESERVES REQUIRED ANNUALLY BY LOAN DOCUMENTS.
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
INCOME:
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
- ------------------------------------------------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD (2) YYYY-U/W YYYY-YYYY
- ------------------------------------------------------------------------------------------------------------------------------------
Statement Classification(yr) BASE LINE (FM NOI ADJ AS OF / / VARIANCE VARIANCE
SHEET)
- ------------------------------------------------------------------------------------------------------------------------------------
Gross Potential Rent (3)
- ------------------------------------------------------------------------------------------------------------------------------------
LESS: VACANCY/COLLECTION LOSS
- ------------------------------------------------------------------------------------------------------------------------------------
OR
- ------------------------------------------------------------------------------------------------------------------------------------
Base Rent (3)
- ------------------------------------------------------------------------------------------------------------------------------------
Laundry/Vending Income
- ------------------------------------------------------------------------------------------------------------------------------------
Parking Income
- ------------------------------------------------------------------------------------------------------------------------------------
Other Income
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
- ------------------------------------------------------------------------------------------------------------------------------------
(2) SERVICER WILL NOT BE EXPECTED TO "NORMALIZE" THESE YTD/TTM NUMBERS.
- ------------------------------------------------------------------------------------------------------------------------------------
(3) USE EITHER GROSS POTENTIAL (WITH VACANCY/COLLECTION LOSS) OR BASE RENTS;
USE NEGATIVE $AMT FOR VACANCY/COLLECTION LOSS
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
- ------------------------------------------------------------------------------------------------------------------------------------
Real Estate Taxes
- ------------------------------------------------------------------------------------------------------------------------------------
Property Insurance
- ------------------------------------------------------------------------------------------------------------------------------------
Utilities
- ------------------------------------------------------------------------------------------------------------------------------------
Repairs and Maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Management Fees
- ------------------------------------------------------------------------------------------------------------------------------------
Payroll & Benefits
- ------------------------------------------------------------------------------------------------------------------------------------
Advertising & Marketing
- ------------------------------------------------------------------------------------------------------------------------------------
Professional Fees
- ------------------------------------------------------------------------------------------------------------------------------------
General and Administrative
- ------------------------------------------------------------------------------------------------------------------------------------
Other Expenses
- ------------------------------------------------------------------------------------------------------------------------------------
Ground Rent
- ------------------------------------------------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*NET OPERATING INCOME
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Capital Expenditures
- ------------------------------------------------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*NET CASH FLOW
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
- ------------------------------------------------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
- ------------------------------------------------------------------------------------------------------------------------------------
(IE. OPERATING STATEMENTS, FINANCIAL STATEMENTS, TAX RETURN, OTHER)
- ------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: YEARS ABOVE WILL ROLL, ALWAYS SHOWING A 3YR SEQUENTIAL HISTORY. COMMENTS FROM THE MOST RECENT NOI ADJUSTMENT
WORKSHEET SHOULD BE CARRIED FORWARD TO OPERATING STATEMENT ANALYSIS REPORT. YEAR-OVER-YEAR VARIANCES (EITHER HIGHER OR LOWER) MUST
BE EXPLAINED AND NOTED FOR THE FOLLOWING: 10% DSCR CHANGE, 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
- ------------------------------------------------------------------------------------------------------------------------------------
INCOME COMMENTS:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
EXPENSE COMMENTS:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
CAPITAL ITEMS COMMENTS:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA Loan Periodic Loan File. Note that information for
multiple property loans must be consolidated (if available) for reporting to the CMSA Loan Periodic file.
- ------------------------------------------------------------------------------------------------------------------------------------
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT
(INCLDS. MOBILE HOME PARKS)
as of MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
- ------------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID
- ------------------------------------------------------------------------------------------------------------------------------------
Current Scheduled Loan Balance
/Paid to Date Current Allocated Loan Amount %
- ------------------------------------------------------------------------------------------------------------------------------------
Property Name
- ------------------------------------------------------------------------------------------------------------------------------------
Property Type
- ------------------------------------------------------------------------------------------------------------------------------------
Property Address, City, State
- ------------------------------------------------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds USE SECOND BOX TO SPECIFY SQ FT.,UNITS...
- ------------------------------------------------------------------------------------------------------------------------------------
Year Built/Year Renovated
- ------------------------------------------------------------------------------------------------------------------------------------
Cap Ex Reserve (annually)/per SPECIFY ANNUAL/PER UNIT...
Unit.etc. (1)
- ------------------------------------------------------------------------------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
- ------------------------------------------------------------------------------------------------------------------------------------
Occupancy Rate (physical)
- ------------------------------------------------------------------------------------------------------------------------------------
Occupancy Date
- ------------------------------------------------------------------------------------------------------------------------------------
Average Rental Rate
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(1) TOTAL $ AMOUNT OF CAPITAL RESERVES REQUIRED ANNUALLY BY LOAN DOCUMENTS.
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
INCOME:
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
- ------------------------------------------------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD (2) YYYY-U/W YYYY-YYYY
- ------------------------------------------------------------------------------------------------------------------------------------
Statement Classification(yr) BASE LINE (FM NOI ADJ AS OF / / VARIANCE VARIANCE
SHEET)
- ------------------------------------------------------------------------------------------------------------------------------------
Gross Potential Rent (3)
- ------------------------------------------------------------------------------------------------------------------------------------
LESS: VACANCY/COLLECTION LOSS
- ------------------------------------------------------------------------------------------------------------------------------------
OR
- ------------------------------------------------------------------------------------------------------------------------------------
Base Rent (3)
- ------------------------------------------------------------------------------------------------------------------------------------
Laundry/Vending Income
- ------------------------------------------------------------------------------------------------------------------------------------
Parking Income
- ------------------------------------------------------------------------------------------------------------------------------------
Other Income
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
- ------------------------------------------------------------------------------------------------------------------------------------
(2) SERVICER WILL NOT BE EXPECTED TO "NORMALIZE" THESE YTD/TTM NUMBERS.
- ------------------------------------------------------------------------------------------------------------------------------------
(3) USE EITHER GROSS POTENTIAL (WITH VACANCY/COLLECTION LOSS) OR BASE RENTS;
USE NEGATIVE $AMT FOR VACANCY/COLLECTION LOSS
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
- ------------------------------------------------------------------------------------------------------------------------------------
Real Estate Taxes
- ------------------------------------------------------------------------------------------------------------------------------------
Property Insurance
- ------------------------------------------------------------------------------------------------------------------------------------
Utilities
- ------------------------------------------------------------------------------------------------------------------------------------
Repairs and Maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Management Fees
- ------------------------------------------------------------------------------------------------------------------------------------
Payroll & Benefits
- ------------------------------------------------------------------------------------------------------------------------------------
Advertising & Marketing
- ------------------------------------------------------------------------------------------------------------------------------------
Professional Fees
- ------------------------------------------------------------------------------------------------------------------------------------
General and Administrative
- ------------------------------------------------------------------------------------------------------------------------------------
Other Expenses
- ------------------------------------------------------------------------------------------------------------------------------------
Ground Rent
- ------------------------------------------------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*NET OPERATING INCOME
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Capital Expenditures
- ------------------------------------------------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*NET CASH FLOW
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
- ------------------------------------------------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
- ------------------------------------------------------------------------------------------------------------------------------------
(IE. OPERATING STATEMENTS, FINANCIAL STATEMENTS, TAX RETURN, OTHER)
- ------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: YEARS ABOVE WILL ROLL, ALWAYS SHOWING A 3YR SEQUENTIAL HISTORY. COMMENTS FROM THE MOST RECENT NOI ADJUSTMENT
WORKSHEET SHOULD BE CARRIED FORWARD TO OPERATING STATEMENT ANALYSIS REPORT. YEAR-OVER-YEAR VARIANCES (EITHER HIGHER OR LOWER) MUST
BE EXPLAINED AND NOTED FOR THE FOLLOWING: 10% DSCR CHANGE, 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
- ------------------------------------------------------------------------------------------------------------------------------------
INCOME COMMENTS:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
EXPENSE COMMENTS:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
CAPITAL ITEMS COMMENTS:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA Loan Periodic Loan File. Note that information for
multiple property loans must be consolidated (if available) for reporting to the CMSA Loan Periodic file.
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT J
CMSA Standard Information Package
SERVICER WATCH LIST
as of ______________
(Loan Level Report)
- ------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PRECEDING
PROSPECTUS SHORT NAME PROPERTY SCHEDULED PAID THRU MATURITY FISCAL YR
LOAN ID (WHEN APPROPRIATE) TYPE CITY STATE LOAN BALANCE DATE DATE DSCR NOI/NCF
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list in descending balance order.
- ------------------------------------------------------------------------------------------------------------------------------------
Comment section should include reason and other pertinent information.
- ------------------------------------------------------------------------------------------------------------------------------------
Should not include loans that are specially serviced.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total: $
- ------------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
S4 L70/L97
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
PROSPECTUS MOST RECENT DSCR
LOAN ID NOI/NCF COMMENT / ACTION TO BE TAKEN
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Total:
- ----------------------------------------------------------------------
EXHIBIT K
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(INCLDS. RETAIL/OFFICE/IND/WHS/MIXED USE/SELF STORAGE)
as of MM/DD/YY
===================================================================================================================================
PROPERTY OVERVIEW
------------------
PROSPECTUS ID
------------------ --------------- ---------------
Current Scheduled Loan Balance/Paid to Current Allocated
Date Loan Amount %
-------------------------------------------------------------------
Property Name
-------------------------------------------------------------------
Property Type
-------------------------------------------------------------------
Property Address, City, State
-------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds USE SECOND BOX TO SPECIFY SQFT.,UNITS...
------------------ ---------------
Year Built/Year Renovated
------------------ ---------------
Cap Ex Reserve (annually)/per Unit.etc. (1) SPECIFY ANNUAL/PER UNIT...
------------------ ---------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) TOTAL $ AMOUNT OF CAPITAL RESERVES REQUIRED ANNUALLY BY LOAN DOCUMENTS, EXCL.
LEASING COMMISSION AND TI'S
===================================================================================================================================
INCOME: YYYY NOTES
------------------ --------------- ---------------
BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
------------------ --------------- ---------------
Gross Potential Rent (2)
------------------ --------------- ---------------
LESS: VACANCY/COLLECTION LOSS
--------------------------------------------------------------------
OR
--------------------------------------------------------------------
Base Rent (2)
------------------ --------------- ---------------
Expense Reimbursement
------------------ --------------- ---------------
Percentage Rent
------------------ --------------- ---------------
Other Income/Parking Income
------------------ --------------- ---------------
EFFECTIVE GROSS INCOME
------------------ --------------- ---------------
(2) USE EITHER GROSS POTENTIAL (WITH VACANCY/COLLECTION LOSS) OR BASE RENTS;
USE NEGATIVE $ AMT FOR VACANCY/COLLECTION LOSS
OPERATING EXPENSES:
------------------ --------------- ---------------
Real Estate Taxes
------------------ --------------- ---------------
Property Insurance
------------------ --------------- ---------------
Utilities
------------------ --------------- ---------------
Repairs and Maintenance
------------------ --------------- ---------------
Janitorial
------------------ --------------- ---------------
Management Fees
------------------ --------------- ---------------
Payroll & Benefits Expense
------------------ --------------- ---------------
Advertising & Marketing
------------------ --------------- ---------------
Professional Fees
------------------ --------------- ---------------
General and Administrative
------------------ --------------- ---------------
Other Expenses FOR SELF-STORAGE
INCLUDE FRANCHISE
FEES
------------------ --------------- ---------------
Ground Rent
------------------ --------------- ---------------
TOTAL OPERATING EXPENSES
------------------ ---------------
OPERATING EXPENSE RATIO
------------------ ---------------
NET OPERATING INCOME
------------------ ---------------
Leasing Commissions (3)
------------------ --------------- ---------------
Tenant Improvements (3)
------------------ --------------- ---------------
Capital Expenditures
------------------ --------------- ---------------
Extraordinary Capital Expenditures
------------------ --------------- ---------------
TOTAL CAPITAL ITEMS
------------------ --------------- ---------------
(3) ACTUAL CURRENT YR, BUT NORMALIZE FOR ANNUAL IF POSSIBLE VIA CONTRACTUAL,
U/W OR OTHER DATA
------------------ ---------------
NET CASH FLOW
------------------ ---------------
DEBT SERVICE (PER SERVICER)
------------------ ---------------
NET CASH FLOW AFTER DEBT SERVICE
------------------ ---------------
DSCR: (NOI/DEBT SERVICE)
------------------ ---------------
DSCR: (NCF/DEBT SERVICE)
--------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------------------------
(I.E.. OPERATING STATEMENTS, FINANCIAL STATEMENTS, TAX RETURN, OTHER)
===================================================================================================================================
NOTES AND ASSUMPTIONS: THIS REPORT SHOULD BE COMPLETED ANNUALLY FOR "NORMALIZATION" OF BORROWER'S NUMBERS. METHODOLOGY USED IS PER
MBA/CMSA STANDARD METHODOLOGY UNLESS OTHERWISE NOTED. THE "NORMALIZED" COLUMN AND CORRESPONDING COMMENTS SHOULD ROLL THROUGH TO THE
OPERATING STATEMENT ANALYSIS REPORT
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
- -----------------------------------------------------------------------------------------------------------------------------------
MULTIFAMILY NOI ADJUSTMENT WORKSHEET
(INCLDS.MOBILE HOME PARKS)
AS OF MM/DD/YY
===================================================================================================================================
PROPERTY OVERVIEW
------------------
PROSPECTUS ID
------------------ --------------- ---------------
Current Scheduled Loan Balance/Paid to Current Allocated
Date Loan Amount %
-------------------------------------------------------------------
Property Name
-------------------------------------------------------------------
Property Type
-------------------------------------------------------------------
Property Address, City, State
-------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds USE SECOND BOX TO SPECIFY SQFT.,UNITS...
------------------ ---------------
Year Built/Year Renovated
------------------ ---------------
Cap Ex Reserve (annually)/per Unit.etc. (1) SPECIFY ANNUAL/PER UNIT...
------------------ ---------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) TOTAL $ AMOUNT OF CAPITAL RESERVES REQUIRED ANNUALLY BY LOAN DOCUMENTS.
===================================================================================================================================
INCOME: YYYY NOTES
------------------ --------------- ---------------
BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
------------------ --------------- ---------------
Gross Potential Rent (2) Include Pad
/RV Rent
------------------ --------------- ---------------
LESS: VACANCY/COLLECTION LOSS
--------------------------------------------------------------------
OR
--------------------------------------------------------------------
Base Rent (2)
------------------ --------------- ---------------
Laundry/Vending Income
------------------ --------------- ---------------
Parking Income
------------------ --------------- ---------------
Other Income Include forfeited
security/late
fees/pet
------------------ --------------- ---------------
EFFECTIVE GROSS INCOME
------------------ --------------- ---------------
(2) USE EITHER GROSS POTENTIAL (WITH VACANCY/COLLECTION LOSS) OR BASE RENTS;
USE NEGATIVE $ AMT FOR VACANCY/COLLECTION LOSS
OPERATING EXPENSES:
------------------ --------------- ---------------
Real Estate Taxes
------------------ --------------- ---------------
Property Insurance
------------------ --------------- ---------------
Utilities
------------------ --------------- ---------------
Repairs and Maintenance
------------------ --------------- ---------------
Management Fees
------------------ --------------- ---------------
Payroll & Benefits Expense
------------------ --------------- ---------------
Advertising & Marketing
------------------ --------------- ---------------
Professional Fees
------------------ --------------- ---------------
General and Administrative
------------------ --------------- ---------------
Other Expenses
------------------ --------------- ---------------
Ground Rent
------------------ --------------- ---------------
TOTAL OPERATING EXPENSES
------------------ ---------------
OPERATING EXPENSE RATIO
------------------ ---------------
NET OPERATING INCOME
------------------ ---------------
Capital Expenditures
------------------ --------------- ---------------
Extraordinary Capital Expenditures
------------------ --------------- ---------------
TOTAL CAPITAL ITEMS
------------------ --------------- ---------------
NET CASH FLOW
------------------ ---------------
DEBT SERVICE (PER SERVICER)
------------------ ---------------
NET CASH FLOW AFTER DEBT SERVICE
------------------ ---------------
DSCR: (NOI/DEBT SERVICE)
------------------ ---------------
DSCR: (NCF/DEBT SERVICE)
--------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------------------------
(I.E.. OPERATING STATEMENTS, FINANCIAL STATEMENTS, TAX RETURN, OTHER)
===================================================================================================================================
NOTES AND ASSUMPTIONS: THIS REPORT SHOULD BE COMPLETED ANNUALLY FOR "NORMALIZATION" OF BORROWER'S NUMBERS. METHODOLOGY USED IS PER
MBA/CMSA STANDARD METHODOLOGY UNLESS OTHERWISE NOTED. THE "NORMALIZED" COLUMN AND CORRESPONDING COMMENTS SHOULD ROLL THROUGH TO THE
OPERATING STATEMENT ANALYSIS REPORT
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
- -----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT L
ENVIRONMENTAL INSURANCE POLICY
SECURITIZATION COLLATERAL PROTECTION AND [LOGO HERE]
ENVIRONMENTAL LIABILITY INSURANCE Z
DECLARATIONS CLAIMS MADE AND REPORTED COVERAGE ZURICH
STEADFAST INSURANCE COMPANY
Dover, Delaware
Administrative Offices - 1400 American Lane
Schaumburg, Illinois 60196-1056
POLICY
NUMBER: PLC 3568240-00 RENEWAL OF: N/A
ITEM 1. NAMED INSURED(S): BANK OF AMERICA SECURITIES, LLC
ADDRESS: 100 North Tryon Street
Charlotte, North Carolina 28255
ITEM 2. "POLICY PERIOD": EFFECTIVE DATE: December 15, 1999
12:01 A.M. Local time at the address shown
in Item 1.
"Policy period" means the period for which coverage is provided by
the Company to the "insured" under the terms and conditions of this
policy. For each "covered location" the "policy period" shall begin
on the effective date of the policy set out in the Declarations and
end: (1) for Coverage A - the earlier of one (1) year after the
maturity date, as extended, of a loan evidenced by a "mortgage
agreement" or the date on which a loan evidenced by a "mortgage
agreement is sold or transferred such that such loan is no longer
part of the pool of loans held by the "insured" pursuant to the
"PSA"; and (2) for Coverages B, C and D two (2) years from the date
on which all the certificates are fully paid (or provisions are made
for payment) as defined in the "PSA".
ITEM 3. LIMITS OF LIABILITY:
Coverage A $10,000,000 "Outstanding loan balance" and
"Extra expenses"
Coverage B, C and D: $10,000,000 Each Claim
$36,000,000 Total for all Claims under
Coverage A, B, C and/or D
Deductible: $ 0
ITEM 4. COVERED LOCATION(S):
See "covered locations" endorsement to the policy and includes
"covered locations" subsequently owned by the "insured" or its
assignees or designees, whether by virtue of the foreclosure of the
"insured's" lien, by way of deed in lieu of foreclosure or such
other transfer of title or interest calculated to allow the
"insured" the opportunity to recover upon debt evidenced by a
"mortgage agreement" and secured, in whole or in part, by such
"covered location".
ITEM 5. AGREEMENT:
NATIONSLINK FUNDING CORPORATION, Depositor, BANK OF AMERICA, N.A.,
Mortgage Loan Seller, ORIX REAL ESTATE CAPITAL MARKETS, LLC, Master
Servicer and Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Trustee and REMIC Administrator, Series 1999-2 and
dated August 1, 1999.
ITEM 6. FORMS AND ENDORSEMENTS: Estimated Cleanup Costs Protocol Endorsement
Covered Location(s) Endorsement
Broad Form Nuclear energy Liability Exclusion
ITEM 7. POLICY PREMIUM: $1,700.00 per covered location; $83,300 total
ITEM 8. ERP PREMIUM: 100% of policy premium per "covered location".
ITEM 9. BROKER: ENVIRONMENTAL WARRANTY
90 FARMINGTON AVENUE
WEST HARTFORD, CT 06107
Signed by: /s/
---------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company STF-ENVL-D-737-A CW (8/99)
2 of 2
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic or
mechanical, including, photocopying, taping or information storage and retrieval
systems - without permission of the Zurich Insurance Company.
ENDORSEMENT NO. 1
[INSERT LOGO]
COVERED LOCATION(S) Z
ZURICH
- -----------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l Prem. Return Prem.
of Pol. Pol. of End.
- -----------------------------------------------------------------------------------------------
PLC 3568240-00 12/15/1999 12/15/2000 12/15/1999 09561000 N/A N/A
- -----------------------------------------------------------------------------------------------
NAMED INSURED AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA SECURITIES, LLC Environmental Warranty 100
NORTH TRYON STREET 90 Farmington Avenue
CHARLOTTE, NORTH CAROLINA 28255 West Hartford, Connecticut 06107
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
POLICY - CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of premium and the Deductible by the "named
insured" and in reliance upon the statements in the Application made a part
hereof, we agree with the "named insured", subject to all the terms, exclusions
and conditions of the policy that the Declarations shall be amended to include
the following "covered location(s)":
- ------------------------------------------------------------------------------------------------------------------------------------
NUMBER LOAN # NAME ADDRESS CITY COUNTY
- ------------------------------------------------------------------------------------------------------------------------------------
1 1201524 Plaza Bel Air 4751 East Sunrise Drive Tucson Pima
- ------------------------------------------------------------------------------------------------------------------------------------
2 1202613 Koretoff Industrial Complex 15960-15983 Downey Avenue Paramount Los Angeles
- ------------------------------------------------------------------------------------------------------------------------------------
3 1795152 Mill Creek Clinic 15808 Mill Creek Boulevard Mill Creek Snohomish
- ------------------------------------------------------------------------------------------------------------------------------------
4 2006195 Comp USA & Mens Warehouse 6400 Owensmouth Avenue Woodland Hills Los Angeles
- ------------------------------------------------------------------------------------------------------------------------------------
5 2006617 Kingswood Gardens Apartments 540 South Winery Avenue Fresno Fresno
- ------------------------------------------------------------------------------------------------------------------------------------
6 2006963 Rancho Del Oro Commerce Ctr II 4055-4065 Oceanside Blvd. Oceanside San Diego
- ------------------------------------------------------------------------------------------------------------------------------------
7 2021590 Almond Orchard Shopping Center 11753 Fair Oaks Boulevard Citrus Heights Sacramento
- ------------------------------------------------------------------------------------------------------------------------------------
8 2021665 Pacifica Plaza 6101 Centinela Avenue Culver City Los Angeles
- ------------------------------------------------------------------------------------------------------------------------------------
9 2021699 Olivewood Shopping Center 1200-1390 West Olive Avenue Merced Merced
- ------------------------------------------------------------------------------------------------------------------------------------
10 2088714 Best Western Stovall's Inn 1110 West Katella Avenue Anaheim Orange
- ------------------------------------------------------------------------------------------------------------------------------------
11 2092138 Brookhurst Shopping Center 614-658 South Brookhurst Street Anaheim Orange
- ------------------------------------------------------------------------------------------------------------------------------------
12 3007531 Arrow Business Center 402-446 W. Arrow Highway San Dimas Los Angeles
- ------------------------------------------------------------------------------------------------------------------------------------
13 3009552 Ashton Park Apartments 4441 South Escondido Road Las Vegas Clark
- ------------------------------------------------------------------------------------------------------------------------------------
14 3012895 Orchard Supply Hardware 300 Foresta Boulevard San Leandro Alameda
- ------------------------------------------------------------------------------------------------------------------------------------
15 3012945 Golf Course Square Apartments 1082 Golf Course Drive Rohnert Park Sonoma
- ------------------------------------------------------------------------------------------------------------------------------------
16 3012952 Woodgate Oaks Apartments 290 Harvest Lane Santa Rosa Sonoma
- ------------------------------------------------------------------------------------------------------------------------------------
17 3016946 Park Brighton Apartments 1229 Brighton Avenue Modesto Stanislaus
- ------------------------------------------------------------------------------------------------------------------------------------
18 3018165 Venetian Gardens Shopping Center 1401-1465 West March Lane Stockton San Joaquin
- ------------------------------------------------------------------------------------------------------------------------------------
19 3018223 2739-2741 Taylor 2739-2741 Taylor & San Francisco San Francisco
211-229 Jefferson 211-229 Jefferson
- ------------------------------------------------------------------------------------------------------------------------------------
20 3018256 Gateway Crossing Entertainment Complex 1919 Verdugo Boulevard La Canada Flintridge Los Angeles
- ------------------------------------------------------------------------------------------------------------------------------------
21 3018413 Apple Apartments 764 East Twain Avenue Las Vegas Clark
- ------------------------------------------------------------------------------------------------------------------------------------
22 3020062 Villeurbanne Apartments 2821 Lou Ann Drive Modesto Stanislaus
- ------------------------------------------------------------------------------------------------------------------------------------
23 3021391 Int'l Aviation Air Cargo Term. 5975 & 6075 South Spencer Street Las Vegas Clark
- ------------------------------------------------------------------------------------------------------------------------------------
24 3022381 Metrocom Building 980 University Los Gatos Santa Clara
- ------------------------------------------------------------------------------------------------------------------------------------
25 3024965 75 Willow Road 75 Willow Road Menlo Park San Mateo
- ------------------------------------------------------------------------------------------------------------------------------------
26 3027125 2132-2154 Center Street 2132-2154 Center Street Berkeley Alameda
- ------------------------------------------------------------------------------------------------------------------------------------
27 3028172 South Point Plaza 2700 West Baseline Road Tempe Maricopa
- ------------------------------------------------------------------------------------------------------------------------------------
28 3032166 Rosewood Park Retirement 2405 SW 234th Ave Hillsboro Washington
- ------------------------------------------------------------------------------------------------------------------------------------
29 3032679 First Place Apartments 13008 NE 199th Street Battle Ground Clark
- ------------------------------------------------------------------------------------------------------------------------------------
30 3032737 Sherlock Building 320 SW Oak Street Portland Multnomah
- ------------------------------------------------------------------------------------------------------------------------------------
31 3032893 SRC Vision Building 2067 Commerce Drive Medford Jackson
- ------------------------------------------------------------------------------------------------------------------------------------
32 3041985 The Voyager Hotel 501 K Street Anchorage NAP
- ------------------------------------------------------------------------------------------------------------------------------------
33 3045150 Bancroft Center 2546-2580 Bancroft Way Berkeley Alameda
- ------------------------------------------------------------------------------------------------------------------------------------
34 3048386 Harbor/91 Freeway Shopping Center 1604-1620 South Harbor Blvd. Fullerton Orange
- ------------------------------------------------------------------------------------------------------------------------------------
35 3054319 Silver Lake Medical Building 1920 100th ST SE Everett Snohomish
- ------------------------------------------------------------------------------------------------------------------------------------
36 3056355 Worthington Ford of Alaska 1950 Gambell Street Anchorage NAP
- ------------------------------------------------------------------------------------------------------------------------------------
37 3057650 Moss Bay Self Storage 333 5th Place South Kirkland King
- ------------------------------------------------------------------------------------------------------------------------------------
38 3059565 The Meadows Mobile Home Park 12493 State Highway 75 Ketchum Blaine
- ------------------------------------------------------------------------------------------------------------------------------------
39 3101680 South Lake Center NEC of Interstate 5 and Lower Tualatin Washington
Boones Ferry Road
- ------------------------------------------------------------------------------------------------------------------------------------
40 3101847 Allen Business Park 6110-6190 Southwest Arctic Dr., et al. Beaverton Washington
- ------------------------------------------------------------------------------------------------------------------------------------
41 3102092 Alder Creek Apartments 11716 NE 49th Vancouver Clark
- ------------------------------------------------------------------------------------------------------------------------------------
42 3102464 Columbia Vista Manufactured Home Park 839 Livingston Place Troutdale Multnomah
- ------------------------------------------------------------------------------------------------------------------------------------
43 3103140 Gallery Park Apartment 1436 SW Park Avenue Portland Multnomah
- ------------------------------------------------------------------------------------------------------------------------------------
44 4537841 Lakeside Plaza 7900 Green Lake Drive North Seattle King
- ------------------------------------------------------------------------------------------------------------------------------------
45 4541876 Glenbrook Apartments 3717 148th Street SW Lynnwood Snohomish
- ------------------------------------------------------------------------------------------------------------------------------------
46 4542254 Sunrise Village Apartments 15615 East 4th Avenue Spokane Spokane
- ------------------------------------------------------------------------------------------------------------------------------------
47 4542437 Evergreen Mini-Storage 17600 147th Street Southeast Monroe Snohomish
- ------------------------------------------------------------------------------------------------------------------------------------
48 4548590 Baugh Construction Building 900 Poplar Place South Seattle King
- ------------------------------------------------------------------------------------------------------------------------------------
49 4548707 Oakridge Business Park 17965 Northeast 65th Street Redmond King County
- ------------------------------------------------------------------------------------------------------------------------------------
- -----------------------------
NUMBER STATE ZIP CODE
- -----------------------------
1 AZ 85718
- -----------------------------
2 CA 90723
- -----------------------------
3 WA 98012
- -----------------------------
4 CA 91367
- -----------------------------
5 CA 93727
- -----------------------------
6 CA 92054
- -----------------------------
7 CA 95610
- -----------------------------
8 CA 90230
- -----------------------------
9 CA 95340
- -----------------------------
10 CA 92802
- -----------------------------
11 CA 92804
- -----------------------------
12 CA 91773
- -----------------------------
13 NV 89119
- -----------------------------
14 CA 94578
- -----------------------------
15 CA 94928
- -----------------------------
16 CA 95403
- -----------------------------
17 CA 95355
- -----------------------------
18 CA 95207
- -----------------------------
19 CA 94133
- -----------------------------
20 CA 91011
- -----------------------------
21 NV 89109
- -----------------------------
22 CA 95350
- -----------------------------
23 NV 89119
- -----------------------------
24 CA 95030
- -----------------------------
25 CA 94025
- -----------------------------
26 CA 94704
- -----------------------------
27 AZ 85282
- -----------------------------
28 OR 97123
- -----------------------------
29 WA 98604
- -----------------------------
30 OR 97204
- -----------------------------
31 OR 97504
- -----------------------------
32 AK 99501
- -----------------------------
33 CA 94704
- -----------------------------
34 CA 92832
- -----------------------------
35 WA 98208
- -----------------------------
36 AK 99501
- -----------------------------
37 WA 98033
- -----------------------------
38 ID 83340
- -----------------------------
39 OR 97062
- -----------------------------
40 OR 97005
- -----------------------------
41 WA 98682
- -----------------------------
42 OR 97060
- -----------------------------
43 OR 97201
- -----------------------------
44 WA 98103
- -----------------------------
45 WA 98037
- -----------------------------
46 WA 99216
- -----------------------------
47 WA 98272
- -----------------------------
48 WA 98144
- -----------------------------
49 WA 98052
- -----------------------------
All other terms and condition of the policy shall apply and remain unchanged.
Signed by: /s/
---------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Steadfast Insurance Company STF-ENVL-D-160-A CW (3/99)
3 of 3
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic or
mechanical, including, photocopying, taping or information storage and retrieval
systems - without permission of the Steadfast Insurance Company.
ENDORSEMENT NO. 2
[INSERT LOGO]
ESTIMATED CLEANUP COSTS PROTOCOL Z
ZURICH
- -----------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l Prem. Return Prem.
of Pol. Pol. of End.
- -----------------------------------------------------------------------------------------------
PLC 3568240-00 12/15/1999 12/15/2000 12/15/1999 09561000 N/A N/A
- -----------------------------------------------------------------------------------------------
NAMED INSURED AND MAILING ADDRESS: PRODUCER:
Bank of America Securities, LLC Environmental Warranty, Inc.
100 North Tryon Street 90 Farmington Avenue
Charlotte, North Carolina 28255 West Hartford, Connecticut 06107
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of the premium and the Deductible by the "named
insured" and the reliance upon the statements set forth in the Application made
a part hereof, the Company agrees with the "named insured", subject to all the
terms, exclusions, conditions of the policy, that the following shall apply to
determine "estimated cleanup costs" applicable to Coverage A of the policy: I.
I. "ESTIMATED CLEANUP COSTS" DETERMINATION PROTOCOL
The purpose of this endorsement is to determine the reasonable and necessary
"estimated cleanup costs" which would be required to investigate, treat,
monitor, remove, remediate, neutralize or immobilize contaminated soil, surface
water, groundwater, stream sediment, air and similar or other environmental
media of and from the "covered location." In the event a "claim" is made by the
"named insured" under the terms of this policy which triggers Coverage A, the
"estimated cleanup costs" shall be determined pursuant to the following
protocol:
A) THE "NAMED INSURED'S" PROPOSAL FOR SCOPE OF WORK TO DETERMINE
"ESTIMATED CLEANUP COSTS"
Within thirty (30) days from the Company's receipt of a "claim" under
Coverage A, the "named insured" shall select an environmental
consultant ("Consultant"), acceptable to the Company or who at the
time of the "claim" appears on the "named insured's" and Company's
list of accepted consultants and is a nationally-recognized consultant
with experience in the region where the "covered location" is
situated. The Consultant shall have thirty (30) days to develop a
proposal and scope of work to determine the "estimated cleanup costs."
The cost of the Consultant shall be the obligation of the Company. The
Consultant shall consider the attached scope of work at Section IV.,
as guidance in developing the proposed scope of work for "estimated
cleanup costs" ("SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS"). This
proposal will be the "named insured's" SCOPE OF WORK FOR ESTIMATED
CLEANUP COSTS. The "named insured" shall provide the Company with the
"named insured's" proposed SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS
within five (5) days of receipt of same from the Consultant. No later
than twenty-one (21) days after receipt of the proposal from the
"named insured", the Company shall provide to the "named insured"
written notice of acceptance or rejection, in whole or in part, and
the basis of such rejection, of the proposed SCOPE OF WORK FOR
ESTIMATED CLEANUP COSTS. If the "named insured's" proposed SCOPE OF
WORK FOR ESTIMATED CLEANUP COSTS is acceptable to the Company, the
Company shall send written confirmation of its acceptance to the
"named insured." Within fourteen (14) days of the "named insured's"
receipt of the Company's written rejection of the proposed SCOPE OF
WORK FOR ESTIMATED CLEANUP COSTS, the "named insured" and the Company
agree to cooperate in good faith and use best efforts to resolve any
dispute to determine a mutually agreeable SCOPE OF WORK FOR ESTIMATED
CLEANUP Costs. In the event of failure to resolve such dispute, the
"named insured" and the Company agree to come to a final determination
of the SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS using the Dispute
Resolution Procedure in Section II., of this endorsement. If
reasonable under the circumstances and in accordance with paragraph
B.(1) below, the Consultant can be authorized to implement those
portions of the SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS that are
acceptable to the Company pending resolution of any dispute.
B) THE CONTRACT WITH THE CONSULTANT TO DETERMINE "ESTIMATED CLEANUP
COSTS"
Within five (5) days of the Company and "named insured's" agreement
with the proposed SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS, the
Consultant shall be retained by written contract with the "named
insured." The contract shall specifically state that the Consultant
has a duty to the Company as well as the "named insured", the Company
is a third party beneficiary of the contract, and that the Company is
relying on the results thereunder for use in claim valuation. The
Consultant shall perform its scope of work to determine "estimated
cleanup costs" in accordance with the scope of work as described in
the contract between the "named insured" and the Consultant as agreed
to by the Company in paragraph A., above.
1) The Consultant shall product a written report ("ESTIMATED CLEANUP
COSTS REPORT") indicating its determination of "estimated cleanup
costs" which report shall describe in detail, and in such form
and content as is consistent with the industry standard, and
include the methodology and rationale by which the Consultant
reached its determination of "estimated cleanup costs." A copy of
such report shall be provided to the Company within five (5) days
of its receipt by the "named insured."
2) The Company shall use best efforts to review and accept or
contest the ESTIMATED CLEANUP COSTS REPORT within twenty-one (21)
days of the Company's receipt of the report. If the Company
agrees, it shall become a determination of "estimated cleanup
costs" for "claim" purposes under Coverage A of the policy.
However, in the event that the Company contests the Consultant's
determination of "estimated cleanup costs", then the Company
shall be provided fourteen (14) days to conduct variance
discussions with the Consultant and the "named insured" with all
written submissions copied to the other party. If the variance
discussions with the Consultant do not result in agreement on the
"estimated cleanup costs", then the Company and the "named
insured" will as soon as possible, proceed to resolve the dispute
pursuant to Dispute Resolution Procedure Section II., of this
endorsement.
II. DISPUTE RESOLUTION PROCEDURE
In the event of a dispute between the "named insured" and the Company
regarding the establishment of the proposed SCOPE OF WORK FOR ESTIMATED
CLEANUP COSTS with the Consultant or the determination of "estimated
cleanup costs" contained in the ESTIMATED CLEANUP COST REPORT the Company
and the "named insured" agree to follow this dispute resolution procedure.
Within ten (10) days of the Company and the "named insured's" failure to
agree on the proposed SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS or a
determination of "estimated cleanup costs" contained in the ESTIMATED
CLEANUP COST REPORT, the Company and the "named insured" shall jointly
retain a Consultant to act as an umpire ("Umpire Consultant") which is
mutually acceptable to the "named insured" and to the Company or who at the
time of the "claim" appears on the "named insured's" and Company's list of
accepted consultants and is a nationally-recognized consultant with
experience in the region where the "covered location" is situated. The cost
of the Umpire Consultant shall be the obligation of the Company.
A) PROPOSED SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS AND/OR ESTIMATED
CLEANUP COSTS REPORT DISPUTE RESOLUTION
The Umpire Consultant shall perform a "peer review" of the initial
Consultant's proposed SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS in
accordance with the Scope of Work set forth in Section IV., of this
endorsement or perform a "peer review" of the ESTIMATED CLEANUP COSTS
REPORT including the "estimated cleanup costs" determination. Within
ten (10) days after the retention of the Umpire Consultant the Company
and the "named insured" or its designee shall be provided the
opportunity to present to the Umpire Consultant by appearance (or in
written submission with a copy to the other party), information
relevant to the SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS and/or the
ESTIMATED CLEANUP COSTS Report with five (5) days to replay to any
submission. Within thirty-five (35) days after the selection and the
retention of the Umpire Consultant, the Umpire Consultant shall
determine the SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS and/or the
ESTIMATED CLEANUP COSTS REPORT including the "estimated cleanup costs"
determination. A determination of the SCOPE OF WORK FOR ESTIMATED
CLEANUP COSTS and/or the ESTIMATED CLEANUP COSTS Report including the
"estimated cleanup costs" determination which is agreed to by the
Umpire Consultant and either the Company or the "named insured" shall
be determinative for the purpose of this endorsement.
III. THE ESTIMATED CLEANUP COSTS DETERMINATION AND ITS USE UNDER COVERAGE A
The Company will apply the "estimated cleanup costs" determination to
arrive at a "claim" payment under Coverage A. If the Company makes a
payment of "estimated cleanup costs" to the "named insured" under Coverage
A then the "named insured" may elect to have the "estimated cleanup costs"
payment made by the Company constitute a final determination of the "claim"
under the policy.
A) ESTIMATED CLEANUP COSTS CLAIM PAYMENT UNDER COVERAGE A AS A FINAL
DETERMINATION
If the "named insured" elects to have a "claim" payment of "estimated
cleanup costs" constitute a final determination then the Company shall
not have any further obligation for payment under the policy for
"estimated cleanup costs" or any new and/or additional "cleanup costs"
resulting from the "pollution event" which is the subject of the
"claim" payment for "estimated cleanup costs." The "named insured" and
the Company agree to execute all reasonable and necessary settlement
documents simultaneously with the Company's payment to the "named
insured" of the "estimated cleanup costs" under Coverage A.
B) ESTIMATED CLEANUP COSTS CLAIM PAYMENT UNDER COVERAGE A NOT A FINAL
DETERMINATION
If the "estimated cleanup costs" is not a final determination of the
"claim" under the policy and the "named insured' elects to have a
"cleanup" performed at the "covered location", any difference between
"estimated cleanup costs" paid to the "named insured" and actual
"cleanup costs" incurred shall be handled in the following manner.
1) DISCOVERY OF NEW AND/OR ADDITIONAL "CLEANUP COSTS" WHEN THE
"NAMED INSURED" HAS ELECTED TO PERFORM THE "CLEANUP" AT THE
"COVERED LOCATION"
A) If during the "cleanup" at the "covered location" new and/or
additional "cleanup costs" are discovered which arise from
the "pollution event" which was the subject of a "claim"
payment for "estimated cleanup costs" but were not part of
the prior "estimated cleanup costs" payment, or occur
because of the inaccuracy of the "estimated cleanup costs"
determination then the Company may have obligations for
additional "cleanup costs" covered under the terms and
conditions of the policy. The "named insured" must notify
the Company, in writing, as soon as possible following the
discovery of new and/or additional "cleanup costs." This
request for new and/or additional "cleanup costs" which
arise from the "pollution event" which was the subject of a
"claim" payment for "estimated cleanup costs" shall be
considered part of the same "claim" for "estimated cleanup
costs." Therefore, this request shall not be considered a
new "claim" and the most the Company will pay for any new
and/or additional "cleanup costs" under the policy shall be
the "outstanding loan balance" and "extra expenses" for a
"covered location" less any "estimated cleanup costs"
previously paid or scheduled to be paid to the "named
insured" by the Company.
B) The Company agrees to provide a prompt written determination
to the "named insured" with regard to whether the new and/or
additional "cleanup costs" are covered under the terms and
conditions of the policy in accordance with customarily
accepted standards in the insurance industry. If the
"cleanup costs" are covered under the terms and conditions
of the policy then the Company agrees to provide payment for
such covered "cleanup costs" to the "named insured" or its
designee.
C) If the actual "cleanup costs" incurred or paid by the "named
insured" during the "cleanup" at a "covered location" are a
lesser amount than the "estimated cleanup costs" payment
then the "named insured" shall reimburse the Company for
those amounts up to the amount of the Company's payment for
the "estimated cleanup costs" under Coverage A of the
policy.
2) COOPERATION BETWEEN THE "NAMED INSURED" AND THE COMPANY WHEN THE
"NAMED INSURED" ELECTS TO HAVE A "CLEANUP" PERFORMED AT THE
"COVERED LOCATION" AND FOR WHICH THE COMPANY HAS MADE A "CLAIM"
PAYMENT OF "ESTIMATED CLEANUP COSTS"
A) The "named insured" and the Company agree to cooperate with
each other in the administration of the "cleanup" at the
"covered location" and the "named insured" agrees not to
incur or authorize to be incurred by any third party,
including the "borrower", any costs materially inconsistent
with those which are described in the ESTIMATED CLEANUP
COSTS REPORT and the "estimated cleanup costs" payment
without the express written consent of the Company, which
consent shall not be unreasonably withheld, delayed or
denied. The "named insured" acknowledges that if costs which
are materially inconsistent are paid or incurred without the
Company's consent the Company shall have no obligation under
the policy to provide coverage for such costs. If the "named
insured" deems that any expenditure of costs within the
"estimated cleanup costs" payment is necessary but the cost
is for a task inconsistent with the description and
conclusions of the ESTIMATED CLEANUP COSTS REPORT, the
"named insured" agrees to notify the Company as soon as
reasonably possible about such costs and seek the consent of
the Company, which consent shall not be unreasonably
withheld, delayed or denied, with regard to such costs. If
the Company does not consent to the request for such costs
then such costs shall not be applied against the "estimated
cleanup costs" payment and such costs may be disallowed for
coverage under the policy. Notwithstanding the foregoing,
the "named insured" may take such "emergency action(s)" as
reasonably necessary to prevent or mitigate further "cleanup
costs", provided the "named insured" provides notice to the
Company within ninety-six (96) hours. If oral notice is
provided, the "named insured" agrees to follow up in
writing, as soon as reasonably possible.
B) The "named insured" agrees to provide the Company with
quarterly status reports of the remediation and actual
"cleanup" of each "covered location" beginning with the
quarter period immediately following the Company's payment
of any amount of "estimated cleanup costs" to the "named
insured." The quarterly status reports shall include but not
be limited to: (1) a description of the "cleanup"; and (2) a
description of all costs incurred up tot he date of the
report indicating the corresponding task in detail with
reference to the relevant sections of the ESTIMATED CLEANUP
COSTS Report. The Company shall review the "estimated
cleanup costs" expended as to whether such costs are
allowable and in accordance with the ESTIMATED CLEANUP COSTS
REPORT. If the Company determinates that any costs expended
for the "cleanup" at the "covered location" materially
differ from those which are described in the ESTIMATED
CLEANUP COSTS REPORT and the Company is thereby prejudiced
by such payment outside the ESTIMATED CLEANUP COSTS REPORT,
then the Company shall provide notice, in writing, to the
"named insured" indicating the prejudice, and such costs may
be disallowed from application against the "estimated
cleanup costs" payment. Notwithstanding the above, the
"named insured" shall keep and maintain records of all
"cleanup" payments and make them available to the Company
for review and audit.
C) If at any time the actual "cleanup costs" incurred are equal
to or greater than seventy-five percent (75%) of the
"estimated cleanup costs" paid by the Company to the "named
insured" or if at any time the "named insured" discovers new
and/or additional "cleanup costs" which were not part of the
ESTIMATED CLEANUP COSTS REPORT or "estimated cleanup costs"
payment, the "named insured" shall provide the Company
notice as soon as reasonably possible following the "named
insured's" awareness of such costs. If oral notice is
provided, the "named insured" agrees to follow up in
writing, as soon as reasonably possible. Such notice shall
include the information stated above. Further, the "named
insured" agrees to provide notice to the Company, in
writing, as soon as reasonably possible following the "named
insured's" decision not to perform a "cleanup" at the
"covered location", and the "named insured" also agrees to
provide notice to the Company, in writing, as soon as
reasonably possible of the "named insured's" knowledge of
the "borrower's" election to perform a "cleanup" at the
"covered location."
IV. SCOPE OF WORK FOR ESTIMATED CLEANUP COSTS
A) ENGAGEMENT:
A Consultant shall be retained to perform the necessary investigation
and subsequent estimation of anticipated environmental cleanup costs
with specific reference to certain property suspected to be
contaminated by a "pollution event."
The Consultant will have access to a recent Phase I Environmental Site
Assessment report on the subject property. Consultant shall, in it
review of the historic data, consider what supplementary invasive
sampling and other additional site work may be required to complete an
ESTIMATED CLEANUP COST REPORT pursuant to the SCOPE OF WORK FOR
ESTIMATED CLEANUP COSTS.
B) DEFINITION OF ESTIMATED CLEANUP COSTS INVESTIGATION:
The investigation involves a (1) review, consideration and
quantification of available, recent and/or historic data pertaining to
the environmental character of the subject property, including
database searches, Phase I and II Environmental Site Assessments, and
(2) such additional invasive sampling of air, soil, groundwater,
surface water, waste streams, chemicals, suspected asbestos containing
materials, or other hazardous materials in solid, liquid or gaseous
form as the Consultant determines to be reasonably necessary in its
best professional judgment to quantify and delineate existing levels
of contamination within the property with respect to the "pollution
event" and with reference to and to the extent required by applicable
"governmental authority" for purposes of the Consultant determining
the "estimated cleanup costs" to "cleanup" the "pollution event."
C) PROPOSALS FOR INVASIVE SAMPLING:
General: The types and locations of materials sampled and the
analytical method employed shall be directly related to the nature of
the suspected contamination or other potential violation of
environmental laws or regulations. The analytical parameters shall be
limited to the types of materials that are reasonably believed to have
been released (e.g., a TCLP metals test is not appropriate when the
only suspected release is related to gasoline). All testing shall be
conducted in accordance with applicable EPA and state protocols.
In connection with the Investigation, no Phase II investigative work
shall be performed until the "named insured" and the Company have
reviewed a written proposal for the Phase II Environmental Site
Assessment and until the "named insured" and the Company have approved
the same in writing. Any such proposal shall include:
1) A description of the areas or materials to be sampled, which
shall include a short but complete explanation as to why it is
necessary to obtain such samples.
2) A description of the sampling to be performed, which shall
include the proposed depth of sub-surface sampling and a
description of the analytical method to be used (including the
types of substances that would be detected using the proposed
analytical method).
3) A detailed cost breakdown for each type of sample taken and each
type of analysis performed, and any miscellaneous costs such as
travel, report preparation, etc., plus a total cost figure of the
services proposed.
4) A time period within which the Phase II Environmental Site
Assessment report can be completed, including a timeline for
mobilization, sampling and analysis.
5) Disclosure of whether the Consultant is obligated to provide any
or all of the analytical testing results to local, state or
federal government agencies.
Additional Testing. If after the Consultant's invasive sampling is
completed, the Consultant reasonably determines that additional
sampling is required in order to properly delineate the environmental
contamination for the purposes of determining the "estimated cleanup
costs", the Consultant should notify the "named insured" and the
Company and prepare for their prior approval a supplemental proposal
for any such additional sampling before performing such work.
The ESTIMATED CLEANUP COSTS REPORT shall include, as applicable, the
following:
1) A brief description of the property on which testing and sampling
took place.
2) A description of the location and type of materials sampled along
with a sketch of the site indicating the sample locations.
3) An explanation as to why sampling was deemed necessary in these
areas.
4) An explanation of the sampling protocol used and the analytical
parameters to which the sample was subjected.
5) A table setting forth the sample taken, the type of analysis
performed, the detection limit for such analysis, the analytical
results, and the permissible state or federal standards relating
to the materials sampled. Such a table should clearly convey to
the reader the extent to which detected materials exceed
government standards, if at all.
6) Conclusions and Recommendations. The report's conclusions and
recommendations must contain concise recommendations, which are
not ambiguous as to the course of action required by applicable
"governmental authority" to "cleanup" the identified "pollution
event" and "estimated cleanup costs." If the "estimated cleanup
costs" are presented as a "high-low" dollar range, the difference
between the high and low estimates should not be in excess of
twenty percent (20%) of the lowest cost estimate. Finally, the
Consultant should provide a reasonably detailed description of
the methods and rationales utilized to obtain the "estimated
cleanup costs" set forth in the report.
All other terms and conditions of the Policy shall apply and remain unchanged.
Signed by: /s/
---------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Zurich Insurance Company STF-ENVL-D-738-A CW (8/99)
Page 6 of 6
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic or
mechanical, including, photocopying, taping or information storage and retrieval
systems - without permission of the Zurich Insurance Company.
ENDORSEMENT NO. 3
[INSERT LOGO]
BROAD FORM NUCLEAR ENERGY LIABILITY EXCLUSION Z
ZURICH
- -----------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l Prem. Return Prem.
of Pol. Pol. of End.
- -----------------------------------------------------------------------------------------------
PLC 3568240-00 12/15/1999 12/15/2000 12/15/1999 09561000 N/A N/A
- -----------------------------------------------------------------------------------------------
NAMED INSURED AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA SECURITIES, LLC ENVIRONMENTAL WARRANTY, INC.
100 NORTH TRYON STREET 970 FARMINGTON AVENUE
CHARLOTTE, NORTH CAROLINA 28255 WEST HARTFORD, CONNECTICUT 06107
THE ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
SECURITIZATION COLLATERAL PROTECTION AND ENVIRONMENTAL LIABILITY INSURANCE
POLICY -
CLAIMS MADE AND REPORTED COVERAGE
In consideration of the payment of premium and the Deductible by the "named
insured" and in reliance upon the statements in the Application made a part
hereof, we agree with the "named insured", subject to all the terms, exclusions
and conditions of the policy that Section IV. EXCLUSIONS shall be amended to
include the following exclusion:
(A) any coverage for "outstanding loan balance", "extra expenses",
"estimated cleanup costs", "cleanup costs" and/or "loss(es)" including
"claim expense(s)":
(1) With respect to which an "insured" under the policy is also an
"insured" under a nuclear energy liability policy issued by
Nuclear Energy Liability Insurance Association, Mutual Atomic
Energy Liability Underwriters, Nuclear Insurance Association of
Canada or any of their successors, or would be an "insured" under
any such policy but for its termination upon exhaustion of its
limit of liability; or
(2) Resulting from the "hazardous properties" of "nuclear material"
and with respect to which (a) any person or organization is
required to maintain financial protection pursuant to the Atomic
Energy Act of 1954, or any law amendatory thereof, or (b) the
"insured" is, or had this policy not been issued would be,
entitled to indemnity from the United States of America, or any
agency thereof, under any agreement entered into by the United
States of America, or any agency thereof, with any person or
organization.
(B) Under any Medical Payments coverage, to expenses incurred with respect
to "bodily injury" resulting from the "hazardous properties" of
"nuclear material" and arising out of the operation of a "nuclear
facility" by any person or organization.
(C) Under any coverage, for "outstanding loan balance", extra expenses",
"estimated cleanup costs", "cleanup costs" or "loss(es)" including
"claim expense(s)" resulting from "hazardous properties" of "nuclear
material", if:
(1) The "nuclear material" (a) is at any "nuclear facility" owned by
or operated by or on behalf of, an "insured" or (b) has been
discharged or dispersed therefrom;
(2) The "nuclear material" is contained in "spent fuel", or "waste"
at any time possessed, handled, used, processed, stored,
transported or disposed of, by or on behalf of an "insured"; or
(3) The "outstanding loan balance", "extra expenses", "estimated
cleanup costs", "cleanup costs", and/or "loss(es)" including
"claim expenses" arises out of the furnishing by an "insured" of
services, materials, parts or equipment in connection with the
planning, construction, maintenance, operation or use of any
"nuclear facility", but if such facility is located within the
United States of America, its territories or possessions or
Canada, this exclusion (3) applies only to "property damage" to
such "nuclear facility" and any property thereat.
As used in this exclusion:
"Hazardous properties" includes radioactive, toxic or explosive properties.
"Nuclear material" means "source material", "special nuclear material" or
"by-product material."
"Source material", "special nuclear material", and "by-product material"
have the meanings given them in the Atomic Energy Act of 1954 or in any law
amendatory thereof.
"Spent fuel" means any fuel element or fuel component, solid or liquid,
which has been used or exposed to radiation in a "nuclear reactor."
"Waste" means any waste matter (a) containing "by-product material" other
than the tailings or wastes produced by the extraction or concentration of
uranium or thorium from any ore processed primarily for its "source
material" content, and (b) resulting from the operation by any person or
organization of any "nuclear facility" included under the first two
paragraphs of the definition of "nuclear facility."
"Nuclear facility" means:
(A) Any "nuclear reactor";
(B) Any equipment or device designed or used for (1) separating the
isotopes of uranium or plutonium, (2) processing or utilizing "spent
fuel", or (3) handling, processing or packaging "waste";
(C) Any equipment or device used for the processing, fabricating or
alloying of "special nuclear material" if at any time the total amount
of such material in the custody of the "insured" at the premises where
such equipment or device is located consists of or contains more than
25 grams of plutonium or uranium 233 or any combination thereof, or
more than 250 grams of uranium 235;
(D) Any structure, basin, excavation, premises or place prepared or used
for the storage or disposal of "waste";
and includes the site on which any of the foregoing is located, all
operations conducted on such site and all premises used for such
operations.
"Nuclear reactor" means any apparatus designed or used to sustain nuclear
fission in a self-supporting chain reaction or to contain a critical mass
of fissionable material. "Property damage" includes all forms of
radioactive contamination of property.
All other terms and conditions of the policy shall apply and remain
unchanged.
Signed by: /s/
---------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Steadfast Insurance Company STF-ENVL-D-160-A CW (3/99)
Page 2 of 2
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic or
mechanical, including, photocopying, taping or information storage and retrieval
systems - without permission of the Steadfast Insurance Company.
ENDORSEMENT NO. 4
[INSERT LOGO]
SECURITIZATION COLLATERAL PROTECTION AND Z
ENVIRONMENTAL LIABILITY INSURANCE ZURICH
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
- -----------------------------------------------------------------------------------------------
Policy No. Eff. Date Exp. Date of Eff. Date Producer Add'l Prem. Return Prem.
of Pol. Pol. of End.
- -----------------------------------------------------------------------------------------------
PLC 3568240-00 12/15/1999 12/15/2000 12/15/1999 09561000 N/A N/A
- -----------------------------------------------------------------------------------------------
This endorsement is issued by the company named in the Declarations. It changes
the policy on the effective date listed above at the hour stated in the
Declarations.
"NAMED INSURED" AND MAILING ADDRESS: PRODUCER:
BANK OF AMERICA, N.A. ENVIRONMENTAL WARRANTY
100 NORTH TRYON STREET 970 FARMINGTON AVENUE
CHARLOTTE, NORTH CAROLINA 28255 WEST HARTFORD, CONNECTICUT 06107
It is hereby understood and agreed that Item 1. NAMED INSURED(S) and Item 5.
AGREEMENT of the Declarations Page are deleted in its entirety and replaced with
the following:
ITEM 1. NAMES INSURED(S): Bank of America, N.A.
ADDRESS: 100 North Tryon Street
Charlotte, North Carolina 28255
ITEM 5. AGREEMENT: NATIONSLINK FUNDING CORPORATION, Depositor, BANK OF
AMERICA, N.A., Mortgage Loan Seller, MIDLAND LOAN SERVICES, INC.,
Master Servicer, GMAC COMMERCIAL MORTGAGE CORPORATION, Special
Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, Trustee
and REMIC Administrator, Series 1999-3 and dated as of December 1,
1999.
All other terms and conditions of the policy shall apply and remain unchanged.
Signed by: /s/
---------------------------- -------------------
Authorized Representative Date
Copyright(C)1999 by Steadfast Insurance Company STF-ENVL-D-160-A CW (3/99)
Page 1 of 1
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic or
mechanical, including, photocopying, taping or information storage and retrieval
systems - without permission of the Steadfast Insurance Company.
[INSERT LOGO]
SECURITIZATION COLLATERAL PROTECTION Z
AND ENVIRONMENTAL LIABILITY INSURANCE ZURICH
CLAIMS MADE AND REPORTED COVERAGE
This is a claim(s) made and reported policy. Notice of a potential "claim" is
not a "claim" and does not trigger coverage under the policy. This policy has
certain provisions and requirements unique to it and may be different from other
policies the "insured" may have purchased. "Claims(s)" must first be made by or
against the "insured" during the "policy period", and "claim(s)" must be
reported, in writing, to the Company during the "policy period", the automatic
extended reporting period or an extended reporting period, if applicable. The
payment of "claim(s)", "loss(es)", "outstanding loan balance(s), "extra
expenses", "cleanup costs", "estimated cleanup costs" and "claim" expense(s)",
including defense costs, reduces the limits of insurance. If the policy's Limit
of Liability is exhausted, the Company shall not be liable for "claim
expense(s)" or for the amount of any "claim", "loss", "cleanup costs",
"estimated cleanup costs", "outstanding loan balance", "extra expenses",
judgement or settlement.
Various provisions in this policy restrict coverage. Read the entire policy
carefully to determine rights, duties and what is and is not covered. Words and
phrases that appear in quotation marks have special meanings. Refer to Section
II - DEFINITIONS.
In consideration of the payment of premium, the undertaking of the "insured" to
pay the Deductible, in reliance upon the statements in the Application for this
policy made a part hereof, subject to the Limit of Liability of this policy as
set forth in the Declarations, exclusions, conditions and other terms of this
policy, the Company agrees with the "named insured" as follows:
I. INSURING AGREEMENTS
COVERAGE A: LENDER COLLATERAL PROTECTION
The Company agrees to pay to the "insured" the lesser of the following sums
as a result of a "pollution event" on, at or under a "covered location"
discovered by the "insured" during the "policy period":
1. the "outstanding loan balance" and "extra expenses"; or
2. "estimated cleanup costs";
provided the "borrower" for the "covered location" is in "default" and the
"claim" is reported to the Company during the "policy period". However, if
the "estimated cleanup costs" are either equal to or greater than fifty
percent (50%) of the "outstanding loan balance", the "insured" may select
either the "estimated cleanup costs" or the "outstanding loan balance" and
"extra expenses".
COVERAGE B: FIRST PARTY CLEANUP
The Company agrees to pay on behalf of an "insured" any "cleanup cost(s)"
required by "governmental authority" as a result of a "pollution event" on,
at or under a "covered location" discovered by the "insured" during the
"policy period", provided that the "claim" is reported to the Company
during the "policy period" or any applicable extended reporting period. The
Company shall not, however, pay under this Coverage B for "cleanup costs"
arising out of a "pollution event" which was the subject of a payment for
"estimated cleanup costs" or the "outstanding loan balance" under Coverage
A.
COVERAGE C: THIRD PARTY LIABILITY
The Company agrees to pay on behalf of an "insured" any "loss" caused by a
"pollution event" on, at, under or coming from a "covered location" that an
"insured" is legally obligated to pay as a result of "claim(s)" first made
against the "insured" during the "policy period" provided that the "claim"
is reported to the Company during the "policy period" or any applicable
extended reporting period.
COVERAGE D: THIRD PARTY NAMED PERILS CLEANUP FOR ASBESTOS OR LEAD INCIDENT
The Company agrees to pay on behalf of an "insured" any "cleanup costs"
caused by an "asbestos or lead incident" at a "covered location" during the
"policy period" that the "insured" is legally obligated to pay pursuant to
"governmental authority" as a result of a "claim" first made against the
"insured" during the "policy period" provided that the "claim" is reported
to the Company during the "policy period" or any applicable extended
reporting period.
Notwithstanding anything to the contrary contained in this policy, this
Coverage D shall apply as excess insurance over any other applicable, valid
and collectible insurance maintained by the "insured".
COVERAGE C AND D: DEFENSE
The Company shall have the right and duty to assume the adjustment, defense
and settlement of any "claim" brought by or on behalf of any federal, state
or local regulatory agency, or by or on behalf of a third party seeking
payment for "cleanup costs" and/or "loss" to which this insurance applies
under Coverage C and D. "Claim expense" paid under this policy reduces the
applicable Limit of Liability set out in the Declarations as described in
Section VI., Limit of Liability and Deductible. The Company's duty to
adjust, defend and settle all "claims(s)" to which this insurance applies,
pending and future, ends when the applicable Limit of Liability has been
tendered into court or exhausted by payment of "claim expense", "cleanup
costs" or "loss".
II. DEFINITIONS
A. "Asbestos or lead incident" means the discharge, dispersal or escape
of asbestos, asbestos containing material, lead, or lead containing
material, from the structure within which it was contained at a
"covered location", caused by or arising out of:
1. hostile fire, lightning or explosion;
2. collision, overturning and derailment of a vehicle, including but
not limited to an automobile, truck or train;
3. windstorm;
4. automatic sprinkler leakage;
5. flood and earthquake.
B. "Bodily injury" means physical injury, sickness, or disease sustained
by any person including death resulting therefrom and mental anguish
or emotional distress when accompanied by physical injury.
C. "Borrower" means a person or entity that is financially obligated to
the "insured" pursuant to a "mortgage agreement" pertaining to a
"covered location".
D. "Claim(s)" means:
1. Under Coverage A, notice by the "insured" to the Company, in
writing, or if oral, followed up in writing, as soon as
reasonably possible following the discovery of a "pollution
event" by the "insured" and "default" by the "borrower" and which
seeks the payment of "estimated cleanup costs" or the payment of
the "outstanding loan balance"; or
2. Under Coverage B, notice by the "insured" to the Company, in
writing, or if oral, followed up in writing, as soon as
reasonably possible following the discovery of a "pollution
event" by the "insured" and which seeks the payment of "cleanup
costs" required by" governmental authority"; or
3. Under Coverage C, any demand received by the "insured" which
alleges liability or responsibility on the part of the "insured"
for "loss(es)"; or 4. Under Coverage D, any demand received by
the "insured" which alleges liability or responsibility on the
part of the "insured" pursuant to "governmental authority" for
"cleanup costs" because of an "asbestos or lead incident".
E. "Claim expense(s)" means:
1. fees and costs charged by an attorney designated by the:
a. Company; or
b. "insured", with the prior written consent of the Company;
and
2. all other fees, costs and expenses incurred by the Company, or
incurred by the "insured" with the consent of the Company, which
result from the investigation, adjustment, defense, settlement
and appeal of a "claim".
However, "claim expense(s)" does not include the salaries or expenses
of regular employees or officials of the Company or the "insured" or
the expenses of adjusters of the Company. The "insured" shall be
entitled to $250 per day but not more than $5,000 in total as
allowable expenses for the compensation of its officers or employees
for personally attending any legal proceeding or meeting at the
request of the Company. Notwithstanding anything to the contrary
contained in this policy, these allowable expenses for the
compensation of officers and employees shall not reduce the applicable
Deductible or Limit of Liability set out in the Declarations.
F. "Cleanup" means the investigation, treatment, monitoring, removal,
remediation, neutralization or immobilization of contaminated soil,
surface water, groundwater, or other contamination.
G. "Cleanup costs" means:
1. the necessary expenses incurred in the investigation, treatment,
monitoring, removal, remediation, neutralization or
immobilization of contaminated soil, surface water, groundwater,
or other contamination; and
2. for a "claim" under Coverage B only, the legal fees and costs to
represent the "insured" before any federal, state or local
regulatory agency provided such fees and costs are reasonable and
necessary and incurred with the written consent of the Company.
However, any costs, charges or expenses incurred by the "insured" to
confirm the existence of a "pollution event" shall not be considered
"cleanup costs".
H. "Covered location(s)" means that certain real property which is
collateral for the "mortgage agreement" between the "named insured"
and the "borrower" and includes "covered locations" subsequently owned
by the "insured" or its assignees or designees, whether by virtue of
foreclosure of the "insured's" lien, by way of deed in lieu of
foreclosure or such other transfer of title or interest calculated to
allow the "insured" the opportunity to recover upon debt evidenced by
a "mortgage agreement" and secured, in whole or in part, by such
"covered location". "Covered location(s)" provided coverage under this
policy shall be shown on the "covered location(s)" endorsement to this
policy.
I. "Default" means the existence and declaration by the "insured" of a
"default" or event of "default" as those terms are defined by and in
accordance with the provisions of the "mortgaged agreement" between
the "insured" and the "borrower".
J. "Emergency action" means the reasonable and necessary costs incurred
to prevent or mitigate an imminent and substantial endangerment to
public health or the environment.
K. "Estimated cleanup costs" means the necessary estimated expenses in
connection with the investigation, treatment, monitoring, removal,
remediation, neutralization or immobilization of contaminated soil,
surface water, groundwater, or other contamination as determined by
the Estimated Cleanup Cost Protocol Endorsement, however, any costs,
charges or expenses incurred by the "insured" to confirm the existence
of a "pollution event" shall not be considered "estimated cleanup
costs".
L. "Extra expenses" means the sum of the following: (1) lesser of the
actual amount incurred or six (6) months of interest accrued and
unpaid with respect to a "mortgage agreement"; (2) the lesser of the
actual amount incurred or six (6) months of servicer interests on
"mortgage agreement" payment advances; and (3) the lesser of the
actual amount incurred or ten thousand dollars ($10,000.00) for legal
fees, as each is defined in the "mortgage agreement" or "PSA", which
shall begin to accrue as of the date of the "insured's" declaration of
"default".
M. "Governmental authority" means applicable federal, state, or local
environmental or health and safety statutes and regulations, orders or
ordinances.
N. "Insured" means:
1. the "named insured";
2. its subsidiaries, affiliates and divisions, and all current and
former executives, officers, directors, employees, contract or
leased employees, agents and servants thereof when acting within
the scope of their offices or employment or written agreements
therewith;
3. all current and former executives, officers, directors,
employees, contract or leased employees, agents and servants of
the "named insured" when acting within the scope of their offices
or employment or written agreements with the "named insured";
4. any other person or entity added to the policy by endorsement as
a "insured";
O. "Loss(es)" means:
1. compensatory damages and legal obligations arising from:
a. "bodily injury"; or
b. "property damage"; and
2. "claim expense".
P. "Mortgage agreement" means any and all such documents, certificates
and instruments, including but not limited to a note, a mortgage or
deed of trust, which evidence financial and other obligations of the
"borrower" to the "insured" and as a result of which the "insured"
obtains from the "borrower" a lien or other security interest upon a
"covered location" as renewed, modified or extended.
Q. "Mediation" means any non-binding intervention by a neutral third
party.
R. "Named insured" means:
1. the persons or entity(ies) designated in the Declarations (and
their successor lien holders, servicers or trustees); and
2. any other entity designated by an Endorsement to this policy.
S. "Natural resource damages" means the sum of:
1. reasonable direct costs, including costs of assessment (and
related interest on any unpaid assessment), associated with
action necessary to restore (including replacement and
rehabilitation) natural resources to their baseline condition
prior to the "pollution event"; and
2. the "use value" of injury to or destruction of natural resources,
including the land, surface water, groundwater, subsurface
strata, air, fish, wildlife, or biota, between the time of a
"pollution event" and restoration of the natural resources
injured by the "pollution event".
"Use value" means the value of the natural resources to the public
attributable the direct use of the services provided by the natural
resources.
T. "Outstanding loan balance" means the unpaid principal as defined in
the "mortgage agreement". However, any fees, costs or expense incurred
to confirm the existence of a "pollution event" at the related
"covered location" shall be specifically excluded from the
"outstanding loan balance". For the purpose of determining the "claim"
payment under Coverage A of this policy the "outstanding loan balance"
shall be the amount of unpaid principal as of the date of the
declaration of "default" by the "insured". However, a "claim" payment
of the "outstanding loan balance" includes "extra expenses".
U. "Policy period" means the period for which coverage is provided by the
Company to the "insured" under the terms and conditions of this
policy. For each "covered location" the "policy period" shall begin on
the effective date of the policy set out in the Declarations and end:
(1) for Coverage A - the earlier of one (1) year after the maturity
date, as extended, of a loan evidenced by a "mortgage agreement" or
the date in which a loan evidenced by a "mortgage agreement" is sold
or transferred such that such loan is no longer part of the pool of
loans held by the "insured" pursuant to the "PSA"; and (2) for
Coverages B, C and D two (2) years from the date on which all the
certificates are fully paid (or provisions are made for payment) and
defined in the "PSA".
V. "Pollution event" means the discharge, dispersal, release, or escape
of any solid, liquid, gaseous or thermal irritant, contaminant,
pollutant, or hazardous substance, including smoke, vapor, soot,
fumes, acids, alkalis, chemicals and waste on, at, under or coming
from the soil, surface waters, ground waters, stream sediment, air and
similar or other environmental media of or from the "covered
location", that requires the expenditure of "cleanup costs" to achieve
compliance with "governmental authority" and/or that results in
liability of the "insured" for "loss" and/or cleanup costs" under
Coverage C. This policy provides coverage from any known "pollution
events" disclosed to the Company prior to the effective date for
coverage under this policy and unknown "pollution events".
W. "Pooling and Servicing Agreement" also referred to as "PSA" means the
agreement referred to in the Declarations to this policy.
X. "Property damage" means:
1. physical injury to or destruction of tangible property, including
the resulting loss of the use thereof;
2. "cleanup costs";
3. loss of sue of tangible property that is not physically injured
or destroyed; and
4. "natural resource damages".
III. TERRITORY
The insurance afforded by this policy applies wordwide, provided that the
"claim" is made within the United States of America (including its
territories and possessions), Puerto Rico or Canada.
IV. EXCLUSIONS
This insurance does not apply to "claim(s) based upon or arising out of:
A. any "pollution event" existing prior to the effective date of the
policy which is known prior to the effective date of the policy to any
"named insured's" principal, partner, director, officer, or employee
with responsibility for the "mortgage agreement", environmental
affairs, legal affairs or risk management unless prior to the
effective date of coverage for a "covered location", such "pollution
event" was disclosed to he Company;
B. any dishonest, fraudulent, intentional or malicious act or those of a
knowingly wrongful nature, or the intentional, willful or deliberate
noncompliance with any statute, regulation, ordinance, administrative
complaint, notice of violation, notice letter, executive order, or
instruction of any governmental agency or body by or at the direction
of the "insured", except that this exclusion will not apply to an
"insured" who did not commit, participate in or have knowledge of any
of the acts described;
C. any "claim" made by an "insured" against any other "insured";
D. a "claim made against an insured" by any entity or individual;
E. any obligation of the "insured" which could have been brought in whole
or in part under worker's compensation, disability benefits,
unemployment compensation, employer's liability or any similar law;
F. injury to any employee, contract employee or leased personnel of an
"insured" if such injury occurs during and in the course of said
employment, or to the spouse, child, parent, brother or sister of any
employee, contact employee or leased personnel as a consequence of
said employment, or to any obligation of an "insured" or indemnity or
contribution to another because of "loss(es)" arising out of such
injury in the course of employment;
G. the liability of others assumed by an "insured" under any contract or
agreement, however this exclusion does not apply to "loss" or "cleanup
costs" that the "insured" would have by the operation of law in the
absence of the contract or agreement;
H. any "pollution event" which first commences after a "covered location"
is sold, given away or abandoned by the "borrower" subsequent to the
time the "insured" has discharged or released in full a security
interest or lien upon that "covered location" that was created by a
"mortgage agreement"; except that this exclusion shall not apply to
"pollution events" on, at, under or coming from "covered location(s)"
subsequently owned by the "insured" or its assignees or designees,
whether by virtue of the foreclosure of the "insured's" line, by way
of deed in lieu of foreclosure or such other transfer of title or
interest calculated to allow the "insured" the opportunity to recover
upon debt evidenced by a "mortgage agreement" and secured, in whole or
in part, by such "covered location";
I. any naturally occurring substance on, within or under a "covered
location", in its unaltered form, or altered solely through naturally
occurring processes or phenomena;
J. any products, including but not limited to asbestos containing
material and lead based paint which are part of the structure of the
"covered location(s)", however, this exclusion shall not apply to
coverage provided under Coverage D;
K. heating, ventilating, air conditioning or cooling, and humidification
("HVAC") systems, which are part of the structure of the "covered
location(s)";
L. the normal maintenance or operation, or failure to properly maintain
or operate HVAC systems;
M. any consequence, whether direct or indirect, of war, invasion, act of
foreign enemy, hostilities (whether war be declared or not), civil
war, rebellion, revolution, insurrection or military or usurped power,
strike, riot or civil commotion;
N. goods or products designed, manufactured, sold, handled, distributed,
or supplied by the "insured" or by others trading under its name or
under license from an "insured" once the goods or products are removed
away from the "covered location".
V. EXTENDED REPORTING PERIODS FOR COVERAGE B, C AND D ONLY
A. The "named insured" shall be entitled to an automatic extended
reporting period without additional charge upon termination of
coverage as defined in this section. This period starts at the end of
the "policy period" and lasts for thirty (30 days.
B. In addition to the automatic extended reporting period the "named
insured" shall be entitled to purchase an extended reporting period
for up to three years in duration, except in the event of nonpayment
of premium. The charge for an extended reporting period of up to three
years in duration shall not be more than one hundred percent (100%) of
the premium per "policy period". The extended reporting period for up
to three years in duration starts when the automatic extended
reporting period, set forth in the above paragraph, ends.
C. Upon payment of the additional premium the Company shall issue an
endorsement providing for an extended reporting period for up to three
years in duration provided that the "named insured":
1. makes a written request for such endorsement which the Company
receives within thirty (30) days after termination of coverage as
defined herein; and
2. pays the additional premium when due. If such additional premium
is paid when due, the extended reporting period may not be
canceled by the Company provided that all other terms and
conditions of the policy are met.
D. The "claim" first reported within the automatic extended reporting
period and the extended reporting period for up to three years in
duration, if purchased in accordance with this section, shall be
deemed to have been made on the last day of the "policy period', and
coverage shall apply under this policy provided that the "pollution
event" or the "asbestos or lead incident" occurred during the "policy
period" and the "claim" is otherwise covered under the terms and
conditions of this policy.
E. If the automatic extended reporting period or an extended reporting
period endorsement is in effect, the Company will provide the Each
Claim Limit of Liability and that which is remaining in the Total for
all Claims Limit of Liability shown in the Declaration to this policy,
but only for "Claim(s)" first reported to the Company pursuant to the
policy during the automatic extended reporting period or extended
reporting period endorsement. The purchase of an extended reporting
period does not reinstate or increase the Limit of Liability shown in
the Declaration as applicable to the Total for all Claims.
F. Notwithstanding, CONDITIONS (Section VIII.) Paragraph I., Other
Insurance., the insurance afforded for "claim(s)" first reported
during the automatic extended reporting period and the extended
reporting period coverage is excess over any other valid and
collectible insurance available under policies in force during the
automatic extended reporting period or the extended reporting period
endorsement.
G. For the purposes of automatic extended reporting period and the
extended reporting period for up to three years in duration,
termination of coverage shall mean when the "policy period" ends for
Coverages B, c and D only.
VI. LIMIT OF LIABILITY AND DEDUCTIBLE
A. EACH CLAIM LIMIT OF LIABILITY
The Company's liability for "estimated cleanup costs", and any new
and/or additional "cleanup costs" arising from an "estimated cleanup
costs" "claim" under Coverage A or "outstanding loan balance" and
"extra expenses" "claim" under Coverage A shall not exceed the
"outstanding loan balance" and "extra expenses" for the "covered
location". The Company's liability for "cleanup costs" under Coverage
B shall not exceed the Each Claim Limit of Liability set out in the
Declarations to the policy. The Company's liability for "loss"
including "claim expenses" under Coverage C shall not exceed the Each
Claim Limit of Liability set out in the Declarations to the policy.
The Company's liability for "cleanup costs" including "claim expenses"
under Coverage D shall not exceed the Each Claim Limit of Liability
set out n the Declaration to the policy.
B. TOTAL LIMIT OF LIABILITY
Subject to paragraph A. above, the Company's total liability for all
"loss(es)" including "claim expenses", "cleanup costs", "estimated
cleanup costs", "outstanding loan balances", "extra expenses", and
"claim(s)" shall not exceed the Total for all Claims Limit of
Liability set out in the Declarations. The Company shall not be
obligated to pay any "loss(es)" including "claim expenses", cleanup
costs", "estimated cleanup costs", "outstanding loan balances", extra
expenses" and "claim(s)", or undertake or continue the defense of any
"claim", whether pending or future, after the Total for all Claims
Limit of Liability has been tendered into court or exhausted by
payments of "loss(es)" including "claim expenses", "cleanup costs",
"estimated cleanup costs", "outstanding loan balances", "extra
expenses" or "claim(s)".
C. DEDUCTIBLE
The Deductible amount stated in the Declaration is the obligation of
the "insured" and applies to each "claim". The Company may advance
payment for "loss(es)" including "claim expenses", "cleanup costs",
"estimated cleanup costs", "outstanding loan balances", and "extra
expenses" that fall within the Deductible. The "insured" shall
promptly reimburse the Company for advancing any element of "loss",
"cleanup costs", "estimated cleanup costs", "outstanding loan
balances", and "extra expenses" paid by the Company within an
"insured's" Deductible.
If the Company and the "insured" agree to use "mediation" to resolve a
"claim" provided coverage under INSURING AGREEMENT (Section I.)
Coverages C and D, and a "claim" is resolved thereby, the Deductible
shall be reduced by fifty percent (50%) for that "claim" only, subject
to a maximum reduction of $25,000.
D. MULTIPLE INSUREDS, CLAIM(S), LOSS(ES), CLAIMANTS, POLLUTION EVENTS AND
POLICY PERIODS
1. MULTIPLE INSUREDS OR CLAIMANTS
The inclusion of more than one "insured" in the making of a
single "claim" or the bringing of a single suit regarding the
same "pollution event" shall not increase the Limit of Liability
stated in the Declarations, neither shall the making of
"claim(s)" or the bringing of suits by more than one person or
organization increase the Limit of Liability state in the
Declarations.
2. CLEANUP COSTS ARISING FORM ESTIMATED CLEANUP COSTS
If under Coverage A, the "insured and the Company do not consent
to the "estimated cleanup costs" payment as a final determination
of the "claim" under the policy and the "insured" elects to have
a "cleanup" performed at the "covered location" the following
shall apply.
If new and/or additional "cleanup costs" related to the
"pollution event" which was the subject of a "claim" payment of
"estimated cleanup costs" are discovered or occur because of the
inaccuracy of the "estimated cleanup costs" determination and the
"cleanup costs" were not part of the prior "estimated cleanup
costs" payment, then the Company may have obligations for payment
of the new and/or additional "cleanup costs" covered under the
terms and conditions of the policy. The "insured" must notify the
Company, in writing, as soon as possible following the discovery
of such new and/or additional "cleanup costs". This request for
new and/or additional "cleanup costs" shall be considered part of
the same "claim" for "estimated cleanup costs" under Coverage A.
Therefore, this request shall not be considered a new "claim" and
the most the Company will pay for any new and/or additional
"cleanup costs" under the policy shall be the "outstanding loan
balance" and "extra expenses" for the "covered location" less any
"estimated cleanup costs" previously paid or scheduled to be paid
to the "insured" by the Company.
If the actual "cleanup costs" incurred to paid by the "insured"
are a lesser amount than the "estimated cleanup costs" payment
the "insured" shall reimburse the company for those amounts up to
the amount of the Company's payment for the "estimated cleanup
costs" under Coverage A of the policy.
3. MULTIPLE CLAIMS
Two or more "claim(s)" arising out of the same "pollution event"
with respect to a "covered location" shall be considered a single
"claim" and only one Deductible shall apply regardless of the
number of "insureds" or claimants involved or "policy periods"
during which such "claim(s)" or "loss(es)", cleanup costs",
"estimated cleanup costs", "outstanding loan balances" and "extra
expenses" occurred, and the liability of the Company shall not
exceed the applicable Limit of Liability Any "claim" which takes
place over two or more "policy periods" shall be subject to the
respective Limit of Liability and Total for all Claims Limit of
Liability applicable to the first "policy period" during which
the first "claim" was reported to the Company.
Consistent with paragraph 2., above all claims for new and/or
additional "cleanup costs" arising from a "pollution event" which
was the subject to a "claim" payment for "estimated cleanup
costs" under Coverage A shall be considered one "claim" and
therefore, only one Deductible and one applicable Limit of
Liability shall apply.
4. CLAIMS ARISING FROM POTENTIAL CLAIMS
Any potential "claim which results in a "claim" in a subsequent
uninterrupted renewal "policy period" shall be subject to the
respective Limit of Liability and Total for all Claims Limit of
Liability applicable to the "policy period" in effect when the
potential "claim" was reported to the Company.
5. CLAIMS REPORTED IN THE EXTENDED REPORTING PERIOD
The automatic extended reporting period and the extended
reporting period for up to three years in duration, if purchased
by the "named insured", shall not serve to increase or reinstate
the Limit of Liability set out n the Declarations to the Policy.
The Limit of Liability shall be that which remains at the end of
the "policy period".
E. EXHAUSTION OF LIMITS AND TRANSFER OF DUTIES
When the Each Claim or Total for all Claims Limit of Liability has
actually been exhausted in the payment of "loss(es)", "cleanup costs"
and "claim(s)" the Company will:
1. notify the "insured", in writing, as soon as possible, that such
limits have been exhausted and the Company's duty to defend
"claim(s)" under INSURING AGREEMENT (Section I.) Coverages C
and/or D has also ended; and
2. commence an cooperate in the transfer of control to any
appropriate "insured" of all "claim(s)" which are subject to that
limit and which are reported to the Company before that limit is
exhausted.
VII. CLAIMS PROVISIONS
A. NOTICE OF CLAIM
1. In the event of "claim", the "insured" or its designee must give
written or oral notice to the Company, as soon as possible:
A. under Coverage A following the discovery of both a "default"
and a "pollution event";
B. under Coverage B following the discovery of both a
"pollution event"; and
C. under Coverages C and D following the "insured's" receipt of
a "claim".
2. The notice shall contain particulars sufficient to identify an
"insured" and reasonably obtainable information with respect to:
A. the time, place, "covered location" and circumstances of the
"claim", including how and when the "insured" first became
aware of the "claim";
B. the names and addresses of any injured parties and available
witnesses;
C. any and all applicable and relevant investigative or
engineering reports, data or information about the
"pollution event", "loss", "cleanup costs", "estimated
cleanup costs", "outstanding loan balances" and "extra
expenses" in the control of the "insured"; and
D. any and all other applicable and relevant information known
by the "insured" about the "pollution event", "loss",
"cleanup costs", "estimated cleanup costs", "outstanding
loan balance(s)", "extra expenses" and "claim(s)";
3. If a "claim" is made, the "insured" shall forward to the Company
as soon as reasonably possible following the "insured's" receipt
of every demand, notice, summons, complaint, order or other
process related to the "claim" received by a "insured" or its
designee.
B. NOTICE OF POTENTIAL CLAIM
If during the "policy period" the "insured" has actual knowledge of a
"pollution event" or "asbestos or lead incident" which may reasonably
be expected to give rise to a "claim", the "insured" or its designee
shall provide written notice to the Company as soon as reasonably
possible during the "policy period" containing particulars sufficient
to identify an "insured" and reasonably obtainable information with
respect to:
1. the time, place, "covered location" and circumstances of the
"pollution event" or "asbestos or lead incident", including how
and when the "insured" first became aware of the "pollution
event";
2. the names and addresses of any injured parties and available
witnesses;
3. any and all applicable and relevant investigative or engineering
reports, data or information about the "pollution event", "loss",
"cleanup costs", "estimated cleanup costs", "outstanding loan
balance" and "extra expenses" in the control of the "insured";
4. any and all other applicable and relevant information known by
the "insured" about the "claim", "pollution event", "loss",
"cleanup costs", "estimated cleanup costs", "outstanding loan
balance", "extra expenses" and possible "claim";
and any subsequent "claim", "loss", "cleanup costs", "estimated
cleanup costs", "outstanding loan balance" and "extra expenses" for
which coverage is provided by this policy which arises out of the
"pollution event" shall be deemed for the purposes of this policy to
have been made on the date upon which the written notice of the
"pollution event" was received by the Company.
C. NOTICE TO THE COMPANY
All "claim(s)" ad potential "claim(s)" shall be reported to:
Zurich U.S.
Environmental Risk Management
One Liberty Plaza
165 Broadway, 53rd Floor
New York, New York
Attn: Environmental Counsel
or any other address as substituted by the Company by endorsement onto
the policy.
In the event of oral notice, the "insured" agrees to furnish a written
report to the Company as soon as possible.
D. SELECTION OF DEFENSE COUNSEL
1. In the event an "insured" is entitled by law to select
independent counsel to defend an "insured" at the Company's
expense, the "claim expense" including all attorney's fees the
Company must pay to that counsel are limited to rates the Company
actually pays to counsel the Company retains in the ordinary
course of business in the defense of similar claims in the
community where the "claim" arose or is being defended.
Additionally, the Company may exercise the right to require that
such counsel have certain minimum qualifications with respect to
their legal competency including experience in defending
"claim(s)" similar to the one pending against an "insured" and to
require such counsel to have errors and omissions insurance
coverage. As respects any such counsel, and "insured" agrees to
use best efforts to have counsel timely respond to the Company's
request for information regarding the "claim". Furthermore, an
"insured" may at any time, by its signed consent, waive its right
to select independent counsel.
2. The "insured" shall have the option to consent to the Company's
choice of legal counsel, which consent shall not be unreasonably
withheld, delayed or denied.
E. SETTLEMENT
The "insured" shall not admit liability or settle any "claim" without
the Company's written consent which consent shall not be unreasonably
withheld, delayed or denied. If the Company recommends a reasonable
settlement of a "claim", the "insured" shall have the opportunity to
concur, such concurrence not to be unreasonably withheld, delayed or
denied. If the Company recommends a reasonable settlement:
1. for an amount within the deductible and the "insured" refuses to
concur with such settlement, then the Company shall not be liable
for any "loss" in excess of the Deductible; or
2. for a total amount in excess of the balance of the Deductible and
an "insured" refuses to concur with such reasonable settlement
then the Company's liability for "loss" shall be limited to that
portion of the recommended settlement and the costs, charges and
expenses as of an "insured's" refusal which exceed the Deductible
and fall within the Limit of Liability.
F. VOLUNTARY PAYMENTS
No costs, charges or expenses subject to payment under this policy
shall be paid or incurred by the "insured" without the Company's
written consent, which consent shall not be unreasonably withheld,
delayed or denied.
Notwithstanding the foregoing, an "insured" may take such "emergency
action(s)" as reasonably necessary to prevent or mitigate further
damage, "cleanup costs" and/or "loss(es)" under Coverages B, C and/or
D, provided an "insured" provides notice to the Company within
ninety-six (96) hours.
If oral notice is provided the "insured" agrees to follow up in
writing.
VIII. CONDITIONS
A. ASSIGNMENT - Assignment of interest under this policy may be freely
assigned by the "named insured" to successor lien holders, trustees or
servicers as long as within thirty (30) days from the effective date
of the assignment the "named insured" provides the Company notice of
the assignment indicating the name and address of the assignee.
However, assignment of interest under this policy to any other entity
shall not bind the Company until its consent is endorsed thereon which
consent shall not be unreasonably withheld, delayed or denied.
B. AUDIT AND INSPECTION - The Company shall be permitted, upon reasonable
prior notice to review and inspect on a continuing basis an
"insured's" policies and procedures applicable to an "insured's" real
estate servicing practices. Neither the Company's right to make
inspections, nor the actual undertaking thereof nor any report thereon
shall constitute an undertaking, on behalf of an "insured" or others,
to determine or warrant that "insured's" real estate servicing
practices are in compliance with any law, rule or regulation.
C. BANKRUPTCY - Bankruptcy or insolvency of an "insured" or "borrower"
will not relieve the Company of its obligations under this policy.
D. CANCELLATION - This policy may be canceled by the "named insured" by
surrender thereof to the Company or any of its authorized agents or by
mailing to the Company written notice stating when the cancellation
shall be effective. This policy may be canceled by the Company only
for reasons of fraud or material misrepresentation or, non-payment of
premium. The policy may be canceled by the Company by mailing to the
"named insured", at the address shown in this policy, a notice stating
when thereafter (not less than 60 days for fraud or material
misrepresentation; or 10 days for non-payment of premium) such
cancellation shall be effective. The mailing of notice as aforesaid
shall be sufficient proof of notice. The time of surrender or the
effective date and hour of cancellation stated in the notice shall
become the end of the "policy period". Delivery of such written notice
either by the "named insured" or by the Company shall be equivalent to
mailing.
E. CHANGES - Notice to any agent or knowledge possessed by any agent or
by any other person shall not effect a waiver or change in any part of
this policy or stop the Company from asserting any right under the
terms of this policy. The terms of this policy shall not be waived or
changed except by endorsement issued by the Company and accepted by
the "named insured" to form a part of this policy.
F. COOPERATION - The "insured" and the Company agree to assist and
cooperate in the fulfillment of the terms of the policy, including the
investigation, adjustment, defense or settlement of "claim(s)".
G. DECLARATIONS - By acceptance of this policy, the "first named insured"
agrees that the statements in the Application are their agreements and
representations, all "named insureds" agree that the statements in the
Declarations are their agreements, and that this policy is issued in
reliance upon the truth of such statements and representations and
that this policy embodies all agreements existing between the "named
insured" and the Company or any of its agents relating to this
insurance.
H. OTHER INSURANCE -
1. With regard to Coverage A, B or C, the insurance provided under
this policy is primary insurance, except when stated in the
Declarations to apply in excess of or contingent upon the absence
of other insurance. When this insurance is primary and the
"insured" has other insurance which is stated in the Declarations
to be applicable to the "claim", "loss", "cleanup costs",
"estimated cleanup costs", "outstanding loan balance" or "extra
expenses" on an excess basis, the amount of the Company's
liability under this policy shall not be reduced by the existence
of such excess insurance.
When both this insurance and other insurance apply to a "claim",
"loss", "cleanup costs", "estimated cleanup costs", "outstanding
loan balance" or "extra expenses" on the same basis, whether
primary, excess or contingent, the Company shall not be liable
under this policy for a greater proportion of the "claim",
"loss", "cleanup costs", "estimated cleanup costs", "outstanding
loan balance" or "extra expenses" than that set out in the
Declarations or the following contribution provision, whichever
method is lower:
a. Contribution by Equal Shares - Under this approach each
insurer contributes equal amounts until it has paid its
applicable limit of insurance or none of the "loss",
"cleanup costs", "estimated cleanup costs", "outstanding
loan balance" or "extra expenses" remains, whichever occurs
first; or
b. Contribution by Limits - each insurer's share is based on
the ratio of its applicable limit of insurance to the total
applicable limits of insurance of all insurers.
2. With regard to Coverage D the insurance provided under this
policy is excess over any other applicable, valid and collectible
insurance maintained by the "insured" and applicable to the
"claim".
I. SEPARATION OF INSUREDS - Except with respect to the Limit of Liability
and any rights and duties specifically assigned to the "named
insured", this insurance applies:
1. as if each "named insured" were the only "named insured"; and
2. separately to each "insured" against whom "claim" is made.
Misrepresentation, concealment, breach of condition or violation
of any duty under this policy by one "insured" shall not
prejudice the interest of coverage for another "insured" under
this policy.
J. SOLE AGENT - The first "named insured" or its designee shall act on
behalf of all "insureds" for all purposes, including but not limited
to the payment or return of premium, receipt and acceptance of any
endorsement issued to form a part of this policy, giving and receiving
notice of cancellation or non-renewal, and the exercise of the rights
provided in the extended reporting periods section.
K. SUBROGATION - In the event of payment under Coverage B, C or D of this
policy, the Company shall be subrogated to all an "insured's" rights
of recovery, up to the amount of the Company's payment of a "claim"
under the policy, thereof against any person or organization except
for rights against a "borrower" in possession of the "covered
location". An "insured" shall execute and deliver instruments and
papers and do whatever else is necessary to secure such rights. The
"insured" shall do nothing to prejudice such rights.
L. OFFSET AND REIMBURSEMENT -
1. Outstanding Loan Balance
If, under Coverage A, the Company makes a "claim" payment of the
"outstanding loan balance" at a "covered location", the Company
has additional rights to offset and reimbursement as follows.
The Company may elect as soon as reasonably possible after making
payment of the "outstanding loan balance" and any "extra
expenses", to have the "insured" assign to the Company, the
"mortgage agreement" and other associated documents which
evidence the extension of credit to the "borrower". Once election
is made in writing by the Company, the "insured" will execute all
necessary documents to effect such an assignment or transfer in a
commercially reasonable time.
If such an assignment or transfer is made, and the Company
actually receives funds, net of costs to collect, from the sale,
transfer, foreclosure, or workout of the "mortgage agreement" or
"covered location", it shall credit the "insured's" Total for All
Claims Limit of Liability up to the amount of the "outstanding
loan balance" and "extra expenses" paid by the Company within a
commercially reasonable time following receipt of such funds. If
no assignment or transfer is made because the Company has not
elected to have the "insured" make an assignment or transfer,
then if the "insured" receives funds, net of costs to collect,
from the sale, transfer, foreclosure, or workout of the "mortgage
agreement" or "covered location", it shall reimburse the Company
up to the payment of the "outstanding loan balance" and "extra
expenses" paid by the Company to the "insured", net of costs to
collect, and remit the same to the Company within a commercially
reasonable time following receipt of such funds.
For purposes of this subsection, the term "costs to collect"
shall include costs that relate to the exercise and acquisition
of the assignment, any costs to "cleanup" the "covered location",
any costs incurred for the protection and preservation of the
value of collateral, satisfaction of taxes, assessments and liens
of third parties, and all sale costs, including reasonable
attorneys fees, whether of the "mortgage agreement", the debt or
the "covered location" itself.
2. Estimated Cleanup Costs
If, under Coverage A, the Company makes a "claim" payment of the
"estimated cleanup costs" at a "covered location", the Company
shall have additional rights to offset and reimbursement as
follows.
If the "insured" receives funds, net of costs to collect, from
the sale, transfer, foreclosure, or workout of the "mortgage
agreement" or "covered location" in excess of the "outstanding
loan balance" and "extra expenses", the "insured" shall reimburse
the Company with the amount of funds up to the "estimated cleanup
costs" paid at the "covered location" within a commercially
reasonable period of time following receipt of such funds.
For purposes of this subsection, the "costs to collect" shall
include only those costs paid by the "insured" to "cleanup" the
"covered location" to the extent that such costs were not part of
an "estimated cleanup costs" payment under the policy, for the
protection and preservation of collateral, satisfaction of taxes,
assessments and liens of third parties, and all sale costs,
including reasonable attorneys fees, whether of the "mortgage
agreement", the debt or the "covered location" itself.
If after one hundred eighty (180) days following the "claim"
payment, the "insured" has to attempted a sale, transfer,
foreclosure, or workout of the "mortgage agreement" or "covered
location", the Company may elect to have the "insured" assign to
the Company, the "mortgage agreement" and other associated
documents which evidence the "insured's" extension of credit to
the "borrower". It is in the discretion of the "insured" to
accept the Company's request for the assignment of the "mortgage
agreement" under this paragraph 2.
If such an assignment or transfer is made, and the Company
actually receives funds, net of costs to collect, from the sale,
transfer, foreclosure or workout of the "mortgage agreement" or
"covered location", it shall credit the "insured's" Total for All
Claims Limit of Liability up to the amount of "estimated cleanup
costs" paid by the Company within a commercially reasonable time
following receipt of such funds.
It is understood and agreed, between the "insured" and the
Company that each party makes no promises or representations with
respect to any efforts to achieve collection of funds under this
Condition M.
N. THIRD PARTY BENEFICIARY - This policy shall apply to, inure to the
benefit of, and be binding upon the "insured" and the Company. Except
for the "insured's" permitted assignees or transferees no third party
beneficiaries are anticipated or intended by this policy.
IMPORTANT NOTICE
SERVICE OF SUIT
In the event of failure of the Company to pay any amount claimed to be due
hereunder, the Company, at the request of the "insured", will submit to the
jurisdiction of a court of competent jurisdiction within the United States. It
is further agreed that service of process in such a suit shall be acknowledged
by:
General Counsel - Law Department
Steadfast Insurance Company
1400 American Lane
Schaumburg, Illinois 60196
or his or her representative, and that in any suit instituted against the
Company upon this policy, the Company will abide by the final decisions such
court or of any appellate court in the event of any appeal. Further, pursuant to
any applicable statute of any state, territory or district of the United States
which makes provision therefore, the Company hereby designates the
Superintendent, Commissioner or Director of Insurance, other officer specified
for that purpose in the statute, or his successor or successors in office and
the above General Counsel as its true and lawful attorney upon whom may be
served any lawful process in any action, suit or proceeding instituted by or on
behalf of the "insured" or an beneficiary hereunder arising out of this policy
and hereby designate the above General Counsel as the person to whom the said
officer is authorized to mail such process or a true copy thereof.
IN WITNESS CLAUSE
In return for the payment of premium, and subject to the terms of this policy,
the Company agrees to provide insurance as stated in this policy. This policy
shall not be valid unless countersigned by a duly authorized representative of
the Company.
In Witness Whereof, the Company has executed this policy, and, where required,
have had it countersigned by a duly authorized representative of the Company
PRESIDENT CORPORATE SECRETARY
STEADFAST INSURANCE COMPANY STEADFAST INSURANCE COMPANY
Copyright(C)1999 by Steadfast Insurance Company STF-ENVL-737-A CW (6/99)
Page 15 of 15
All rights reserved. No part of this document covered by the copyrights hereon
may be reproduced or copied in any form by any means - graphic, electronic or
mechanical, including, photocopying, taping or information storage and retrieval
systems - without permission of the Steadfast Insurance Company.
EXHIBIT M
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Wells Fargo Bank Minnesota, N.A.
1015 10th Ave. S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody - Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-1
Re: Second Amended and Restated Pooling and Servicing Agreement
dated as of September 1, 2000 (the "Agreement") among Banc of
America Commercial Mortgage Inc. (successor in interest to
NationsLink Funding Corporation), as Depositor, Bank of
America, N.A., as Mortgage Loan Seller, Midland Loan Services,
Inc., as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, and Wells Fargo Bank
Minnesota, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 2000-1
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name: ________________________________________
Property Address: ________________________________________
Loan Number: ________________________________________
The results of such review should be returned to
[___________________] at the following address:
___________________________________
___________________________________
___________________________________
Phone: ____________________________
Fax: _____________________________
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan
Number Number Property Name Property Address
- ------------------------------------------------------------------------------------------------------------------------------------
A1 51545 224-246 Worth Avenue (Palm V) 224-246 Worth Avenue
A2 51546 256 Worth Avenue (Power-Love Associates) 256 Worth Avenue
A3 51447 Dutch Square Center 800 Bush River Road
A4 51828 Edwards Megaplex Theater 4900 East 4th Street
A5 51022 Huffman Mill Plaza Huffman Mill Road
A6 51671 Wal-Mart Stores Portfolio 2 Summary Page
A7 51670 Wal-Mart Stores Portfolio 1 Summary Page
A8 51573 Golden Triangle Mall 2201 I-35E South
A9 51521 Mansfield Plaza State Route 57
A10 51524 Raintree Towne Shopping Center Smithburg Road (Route 537)
A11 51547 175 Worth Avenue (Hals Realty Associates) 175 Worth Avenue and 411 South Country Road
A12 51605 Tinseltown Theater Complex 320 South Lincoln Way
A13 51606 Lucky Center 923-965 E. Las Tunas Drive
B14 3018223 2739-2741 Taylor 211-229 Jefferson 2739-2741 Taylor & 211-229 Jefferson
A15 50592 Huntersville Square S/C NE Corner of Gilead Road and Statesville Rd.
A16 51625 Orange Village Shopping Center 541-591 North Madison Road (U.S. Route 15)
A17 50889 Barnes & Noble/Chili's Land Lease 98-108 Middlesex Turnpike
A18 50998 Southside Shopping Center 32 Mill Creek Drive and Avon Street Extended
B19 2021590 Almond Orchard Shopping Center 11753 Fair Oaks Boulevard
A20 50740 Laurel Square Shopping Center US 13 and State Route 468
B21 3101680 South Lake Center NEC of Interstate 5 and Lower Boones Ferry Road
A22 51223 Wayman Court Shopping Center 23120-23130 Lyons Ave.
A23 51126 New Lake Hill Shopping Center 901-927 Hillside Ave.
B24 3018256 Gateway Crossing Entertainment Complex 1919 Verdugo Boulevard
A25 51062 Bainbridge Market Place 2600 Bainbridge Blvd.
A26 51611 Franconia Center 6110-6122 Franconia Road
B27 2021699 Olivewood Shopping Center 1200-1390 West Olive Avenue
B28 3045150 Bancroft Center 2546-2580 Bancroft Way
A29 51561 Southside Commons 2108 S. Irby Street
B30 1201524 Plaza Bel Air 4751 East Sunrise Drive
B31 3101847 Allen Business Park 6110-6190 Southwest Arctic Dr., et al.
A32 51578 Mt. Paran Shopping Center 5290 Roswell Road
A33 51562 White Horse Commons 6134 White Horse Road
B34 2006195 Comp USA & Mens Warehouse 6400 Owensmouth Avenue
B35 3048386 Harbor / 91 Freeway Shopping Center 1604 - 1620 South Harbor Blvd
A36 51572 Town Center Mall Shoppes 390 Ernest W. Barrett Parkway
A37 51551 Pecos Wigwam Commercial 2599 Wigwam Parkway
A38 50814 Town Center 3286 US Hwy 17 S
B39 3018165 Venetian Gardens Shopping Center 1401-1465 West March Lane
A40 50874 Cinco Village Shopping Center 23144 Cinco Ranch Blvd.
B41 3012895 Orchard Supply Hardware 300 Foresta Boulvard
A42 50917 Cantrell Shopping Center SC Hwy. 9 @ Old Furnace Rd.
B43 3027125 2132-2154 Center Street 2132-2154 Center Street
A44 51564 Huffines Plaza 229 Huffines Plaza
A45 51522 Town East Center 1100 Homer Road
B46 3028172 South Point Plaza 2700 West Baseline Road
A47 51518 Centre Stage at Jonestown Shopping Center 381 Jonestown Road
B48 2092138 Brookhurst Shopping Center 614-658 South Brookhurst Street
A49 51588 Windy Hill Crossing 2311-2343 Windy Hill Road
A50 51534 Harrison Ridge 417-435 Ridge Road
A51 51589 Zaragosa Retail Center 835 Zaragosa Road
A52 51842 Tiburon Apartments 901 South Country Club Drive
A53 51841 Farmstead Apartments 1415 North Country Club Drive
A54 51840 Cimarron Apartments 151 East First Street
A55 50927 Wellington Meadows Apartments 9550 West Sahara Avenue
A56 50156 Mariner Shores Apartments 2201 N. Buffalo Drive
A57 51520 The Mark at Salem Station 11132-A Sunburst Lane
A58 51816 Oasis Vista Apartments 3300 Needles Highway
A59 51519 Hickory Hills Townhouses 22501 Iverson Dr.
A60 50787 1121 Morrison Ave 1121-1175 Morrison Ave.
A61 51669 North Decatur Manor Apartments 3799-F North Decatur Road
A62 3102092 Alder Creek Apartments 11716 NE 49th
A63 50130 Grassy Creek Apartments 1331 Panama Ave.
A64 50295 Oakridge Apartments 633 Rushcreek Drive
A65 3018413 Apple Apartments 764 East Twain Avenue
A66 2006617 Kingswood Gardens Apartments 540 South Winery Avenue
A67 3012945 Golf Course Square Apartments 1082 Golf Course Drive
A68 3012952 Woodgate Oaks Apartments 290 Harvest Lane
A69 51663 Seasons Apartments 819 Robin Hood Trail
A70 51460 Bath Street Apartments 215 Bath Street
A71 3016946 Park Brighton Apartments 1229 Brighton Avenue
A72 4542254 Sunrise Village Apartments 15615 East 4th Avenue
A73 3009552 Ashton Park Apartments 4441 South Escondido Road
A74 51533 Clearbrook Apartments 4000 West 34th Street
A75 3032679 First Place Apartments 13008 NE 199th Street
A76 51568 Sunchase Square Apartments 7317 Holly Hill Drive
A77 51511 Casa Verde Apartments 700-810 San Pedro & 701-811 Navarro
A78 51078 Venbury Trail Apartments 900 8th Street Southwest
A79 3103140 Gallery Park Apartment 1436 SW Park Avenue
A80 51630 Summit Crossing Apartments 3440 Boulder Park Drive
A81 51614 Timber Ridge Apartments 1342 North Garden Drive
A82 51526 Shadowbrook Apartments 145 Navajo Drive
A83 4541876 Glennbrook Apartments 3717 148th Street SW
A84 50550 Embassy Square Apartments 11230 Otsego Street
A85 51525 Seashore Apartments 19822 Brookhurst Street
A86 50395 2304 Sedgwick Ave 2304 Sedgwick Ave.
A87 51624 Imperial Courtyard Apartments 430 West 6th St.
A88 51164 Power Properties 3 Summary Page
A89 51532 West Oaks Club Apartments 43120 30th Street West
A90 51515 5400 Live Oak Apartments 5400 Live Oak St.
A91 51550 Buffalo Avenue Apartments 5914 Buffalo Avenue and 13545 Califa Street
A92 51465 Ladera Apartments 203 Ladera Street
A93 51629 Anderson Park Apartments 251 Anderson Ave.
A94 3020062 Villeurbanne Apartments 2821 Lou Ann Drive
A95 51195 Pelican Cove Apartments 707-709 Eaton St.
A96 51512 Oakley Lofts 1855 North Oakley
A97 51234 Del Nido Apartments 2100 South Avenue A
A98 51513 Balcones Apartments 1000 Balcones Drive
A99 51595 Bonnie Brae 236 South Bonnie Brae Street
A100 51535 Westwood Apts. 519 West 940 North
A101 50374 1065 Jerome Ave 1065 Jerome Avenue
A102 51379 Bethany Biltmore Apartments 1350 E. Bethany Home Road
A103 51596 Casa Manana Apartments 227-235 Cypress Drive
A104 51473 Bayshore Apartments 3224-3254 Burke Road
A105 50599 610 West 143rd St. 610 West 143rd St
A106 51539 Central Manor Apartments 2611 Central Avenue NE
A107 50600 213-217 West 238th St 213-217 West 238th St.
A108 50789 511 West 147th St. 511- 519 West 147th St.
A109 51667 SCI Portfolio-411 N Ackard St. 411 N. Ackard St.
A110 51626 Lahser Medical Complex Buildings II, III & IV 27207-27211 Lahser Road
B111 3024965 75 Willow Road 75 Willow Road
A112 51088 Kaiser Foundation Health Plan Building 1033 Third Street
A113 51114 Corporate Pointe II 26901 Agoura Rd.
A114 50943 Brand Village 1111 N. Brand Blvd.
A115 51549 Harold Poll Building 110 S. Union Street
A116 51594 Dorsey Hall Medical Center 9501 Old Annapolis Road
A117 51627 Plantation Business Park & Sheridan Park Summary Page
B118 4537841 Lakeside Plaza 7900 Green Lake Drive North
B119 3054319 Silver Lake Medical Building 1920 100th ST SE
B120 3032737 Sherlock Building 320 SW Oak Street
B121 2021665 Pacifica Plaza 6101 Centinela Avenue
A122 51618 1750 Fifth Avenue Building 1750 Fifth Avenue and 1755 Fourth Avenue
A123 51593 Maracay Building 15160 North Hayden Road
A124 51530 West End Court 830 West End Court
B125 1795152 Mill Creek Clinic 15808 Mill Creek Boulevard
A126 51457 Century Plaza 1777 N. California Blvd.
A127 51579 Innkeepers Portfolio Summary Page
A128 51635 Radisson Suites - Secaucus, NJ 350 Route 3 West
A129 51153 Hilton Garden Inn 705 Currency Circle
A130 51587 Biltmore Suites Hotel NC Highway 68 & Regency Drive
B131 2088714 Best Western Stovall's Inn 1110 West Katella Avenue
A132 51824 Hawthorn Suites 1502 East Central Texas Expressway
B133 3041985 The Voyager Hotel 501 K Street
A134 51637 Rosewood Care Center - Moline 7300 34th Ave
A135 51638 Rosewood Care Center - Peoria 1500 West Northmoor Rd
B136 3032166 Rosewood Park Retirement 2405 SW 234th Ave
A137 51051 Walnut Woods of Boyertown 35 North Walnut Street
A138 51067 Hampshire Retirement 3460 R Street
A139 51560 Creekwood Care Center 830 Tamalpais Avenue
A140 50832 Cox Communications Building 5651 Copley Dr.
B141 3022381 Metrocom Building 980 University
B142 1202613 Koretoff Industrial Complex 15960-15983 Downey Avenue
B143 4548590 Baugh Construction Building 900 Poplar Place South
B144 3032893 SRC Vision Building 2067 Commerce Drive
A145 51424 C-2 Civic Center Business Park 920 E. Madison Street
B146 4548707 Oakridge Business Park 17965 Northeast 65th Street
B147 2006963 Rancho Del Oro Commerce Ctr II 4055-4065 Oceanside Blvd.
A148 51414 Career Guidance Foundation Center 8090 Engineer Road
A149 51607 Meadows Mobile Home Park 1515 Polaris Drive
A150 51567 Lord Calvert Mobile Home Park 21165 Great Mills Rd
B151 3059565 The Meadows Mobile Home Park (ID) 12493 State Highway 75
B152 3102464 Columbia Vista Manufactured Home Park 839 Livingston Place
A153 51604 Desert Classic Mobile Home Park 5250 South Campbell Avenue
B154 3021391 Int'l Aviation Air Cargo Term. 5975 & 6075 South Spencer Street
B155 3056355 Worthington Ford of Alaska 1950 Gambell Street
A156 51576 I-40 Bell Summary Page
B157 4542437 Evergreen Mini-Storage 17600 147th Street Southeast
B158 3057650 Moss Bay Self Storage 333 5th Place South
A159 51632 American Store & Lock #1 13304 E. Independence Blvd. and 101 Seaboard Dr.
Remaining
Term
To Stated
Sequence Zip Mortgage Amortization Maturity
Number City State Code Rate(%) Basis Original Balance Cut-off Balance (months)
- ------------------------------------------------------------------------------------------------------------------------------------
A1 Palm Beach FL 33480 8.010% ACT/360 $17,705,750.00 $17,582,613.88 108
A2 Palm Beach FL 33480 8.010% ACT/360 $11,933,800.00 $11,850,805.42 108
A3 Columbia SC 29210 7.875% ACT/360 $23,800,000.00 $23,513,185.80 101
A4 Ontario CA 91764 8.430% ACT/360 $22,000,000.00 $21,895,906.28 111
A5 Burlington NC 27215 7.170% ACT/360 $18,400,000.00 $18,253,462.97 109
A6 Multiple LA Multiple 7.990% ACT/360 $12,600,000.00 $12,533,113.09 138
A7 Multiple TX Multiple 7.990% ACT/360 $ 4,400,000.00 $4,376,642.69 138
A8 Denton TX 76205 8.240% ACT/360 $17,000,000.00 $16,888,820.89 108
A9 Hackettstown NJ 07840 7.760% ACT/360 $ 8,500,000.00 $8,436,911.91 108
A10 Freehold NJ 07728 7.670% ACT/360 $ 8,222,000.00 $8,159,555.25 108
A11 Palm Beach FL 33480 8.010% ACT/360 $ 6,253,000.00 $6,209,512.93 108
A12 North Aurora IL 60542 8.700% ACT/360 $ 5,484,022.00 $5,459,909.38 111
A13 San Gabriel CA 91776 7.920% ACT/360 $ 5,442,000.00 $5,403,248.30 108
B14 San Francisco CA 94133 8.355% 30/360 $ 6,045,000.00 $5,070,755.73 132
A15 Huntersville NC 28078 7.694% ACT/360 $ 4,451,249.08 $4,392,580.64 212
A16 Orange VA 22960 7.810% ACT/360 $ 4,400,000.00 $4,370,032.66 109
A17 Burlington MA 01803 7.090% ACT/360 $ 4,500,000.00 $4,290,569.85 168
A18 Charlottesville VA 22902 7.500% ACT/360 $ 4,103,086.00 $4,076,150.83 110
B19 Citrus Heights CA 95610 8.250% 30/360 $ 4,500,000.00 $3,993,906.03 36
A20 Laurel DE 19956 7.553% ACT/360 $ 4,000,000.00 $3,966,443.44 107
B21 Tualatin OR 97062 9.200% 30/360 $ 4,000,000.00 $3,676,344.03 50
A22 Santa Clarita CA 91321 7.250% ACT/360 $ 3,675,000.00 $3,571,356.88 96
A23 New Hyde Park NY 11040 7.000% ACT/360 $ 3,600,000.00 $3,540,855.28 99
B24 La Canada Flintridge CA 91011 9.430% 30/360 $ 4,000,000.00 $3,395,176.44 11
A25 Chesapeake VA 23324 7.250% ACT/360 $ 3,400,000.00 $3,376,253.62 170
A26 Alexandria VA 22310 8.330% ACT/360 $ 3,309,789.00 $3,290,082.76 109
B27 Merced CA 95340 7.625% 30/360 $ 3,750,000.00 $2,973,679.29 39
B28 Berkeley CA 94704 8.580% 30/360 $ 3,060,000.00 $2,958,853.59 89
A29 Florence SC 29505 8.070% ACT/360 $ 2,872,000.00 $2,838,809.58 108
B30 Tucson AZ 85718 7.750% ACT/360 $ 3,000,000.00 $2,717,647.84 11
B31 Beaverton OR 97005 9.550% 30/360 $ 2,855,000.00 $2,658,308.22 55
A32 Atlanta GA 30342 8.250% ACT/360 $ 2,694,000.00 $2,676,429.10 108
A33 Greenville SC 29611 8.070% ACT/360 $ 2,517,000.00 $2,487,912.14 108
B34 Woodland Hills CA 91367 8.000% 30/360 $ 3,000,000.00 $2,437,825.65 37
B35 Fullerton CA 92832 8.000% 30/360 $ 2,650,000.00 $2,415,111.38 152
A36 Kennesaw GA 30144 8.360% ACT/360 $ 2,450,000.00 $2,434,493.11 108
A37 Henderson NV 89014 8.020% ACT/360 $ 2,400,000.00 $2,382,193.38 107
A38 Chocowinity NC 27817 7.525% ACT/360 $ 2,400,000.00 $2,373,051.16 163
B39 Stockton CA 95207 9.250% 30/360 $ 2,450,000.00 $2,259,729.55 15
A40 Katy TX 77494 7.290% ACT/360 $ 2,235,000.00 $2,197,212.52 97
B41 San Leandro CA 94578 8.125% 30/360 $ 2,350,000.00 $2,089,288.57 65
A42 Boiling Springs SC 29316 7.350% ACT/360 $ 2,093,558.89 $2,072,179.46 99
B43 Berkeley CA 94704 9.125% 30/360 $ 2,080,000.00 $1,995,427.50 80
A44 Lewisville TX 75057 8.650% ACT/360 $ 1,971,000.00 $1,938,246.26 109
A45 Minden LA 71055 7.980% ACT/360 $ 1,900,000.00 $1,828,604.18 105
B46 Tempe AZ 85282 9.000% 30/360 $ 2,000,000.00 $1,761,588.45 141
A47 Winston-Salem NC 27104 8.090% ACT/360 $ 1,714,700.00 $1,689,976.88 105
B48 Anaheim CA 92804 8.400% 30/360 $ 1,700,000.00 $1,426,765.46 45
A49 Marietta GA 30067 8.330% ACT/360 $ 1,400,000.00 $1,353,004.06 108
A50 Munster IN 46321 9.610% ACT/360 $ 1,125,000.00 $1,114,849.36 107
A51 El Paso TX 79907 9.370% ACT/360 $ 992,250.00 $ 977,366.90 109
A52 Mesa AZ 85210 7.970% ACT/360 $16,524,000.00 $16,435,833.32 111
A53 Mesa AZ 85201 7.970% ACT/360 $11,200,000.00 $11,140,240.46 111
A54 Mesa AZ 85201 7.970% ACT/360 $ 6,157,000.00 $6,124,148.23 111
A55 Las Vegas NV 89117 7.100% ACT/360 $19,040,000.00 $18,873,499.73 108
A56 Las Vegas NV 89128 8.380% ACT/360 $10,900,000.00 $10,669,447.89 108
A57 Fredericksburg VA 22407 7.400% ACT/360 $10,200,000.00 $10,111,037.30 107
A58 Laughlin NV 89029 7.730% ACT/360 $ 8,940,000.00 $8,884,640.29 110
A59 Great Mills MD 20634 7.160% ACT/360 $ 7,300,000.00 $7,221,406.87 105
A60 Bronx NY 10472 7.310% ACT/360 $ 5,985,900.00 $5,871,356.45 92
A61 Decatur GA 30032 8.043% ACT/360 $ 5,225,000.00 $5,195,184.21 110
A62 Vancouver WA 98682 8.000% 30/360 $ 5,300,000.00 $5,043,965.73 121
A63 Indianapolis IN 46241 7.860% ACT/360 $ 5,075,000.00 $4,955,950.39 85
A64 Houston TX 77067 7.670% ACT/360 $ 4,900,000.00 $4,869,187.77 110
A65 Las Vegas NV 89109 8.370% 30/360 $ 4,000,000.00 $3,780,675.13 73
A66 Fresno CA 93727 8.150% 30/360 $ 4,500,000.00 $3,706,640.36 40
A67 Rohnert Park CA 94928 7.620% 30/360 $ 3,700,000.00 $3,428,683.30 5
A68 Santa Rosa CA 95403 7.620% 30/360 $ 3,450,000.00 $3,197,015.77 5
A69 Statesboro GA 30458 7.770% ACT/360 $ 3,212,795.00 $3,193,103.89 110
A70 Santa Barbara CA 93101 7.015% ACT/360 $ 3,000,000.00 $2,955,729.04 101
A71 Modesto CA 95355 8.000% 30/360 $ 3,000,000.00 $2,878,768.52 70
A72 Spokane WA 99216 7.110% 30/360 $ 3,000,000.00 $2,812,908.30 74
A73 Las Vegas NV 89119 7.755% 30/360 $ 3,000,000.00 $2,769,936.25 2
A74 Houston TX 77092 8.070% ACT/360 $ 2,735,271.00 $2,713,272.65 106
A75 Battle Ground WA 98604 7.310% 30/360 $ 2,700,000.00 $2,631,719.92 90
A76 Dallas TX 75231 7.990% ACT/360 $ 2,600,000.00 $2,571,814.81 109
A77 College Station TX 77845 7.410% ACT/360 $ 2,600,000.00 $2,575,249.08 106
A78 Altoona IA 50009 6.960% ACT/360 $ 2,600,000.00 $2,556,895.66 159
A79 Portland OR 97201 7.875% 30/360 $ 2,587,500.00 $2,499,365.69 77
A80 Atlanta GA 30331 8.690% ACT/360 $ 2,472,000.00 $2,461,100.85 111
A81 St. Louis MO 63138 8.030% ACT/360 $ 2,386,000.00 $2,369,493.77 108
A82 Sedona AZ 86336 7.990% ACT/360 $ 2,356,000.00 $2,338,377.82 107
A83 Lynnwood WA 98037 8.250% 30/360 $ 2,455,000.00 $2,298,335.02 68
A84 North Hollywood CA 91601 7.040% ACT/360 $ 2,300,000.00 $2,249,339.49 99
A85 Huntington Beach CA 92646 7.655% ACT/360 $ 2,180,000.00 $2,162,186.06 107
A86 Bronx NY 10468 7.770% ACT/360 $ 2,131,800.00 $2,085,721.29 88
A87 Irving TX 75060 8.000% ACT/360 $ 2,100,000.00 $2,085,356.76 108
A88 Multiple TX Multiple 7.250% ACT/360 $ 2,050,000.00 $2,020,002.77 100
A89 Lancaster CA 93536 7.210% ACT/360 $ 1,950,000.00 $1,930,506.29 106
A90 Dallas TX 75214 7.640% ACT/360 $ 1,800,000.00 $1,782,817.78 105
A91 Van Nuys CA 91401 7.830% ACT/360 $ 1,746,000.00 $1,732,371.10 107
A92 Santa Barbara CA 93101 7.125% ACT/360 $ 1,600,000.00 $1,576,973.84 101
A93 Atlanta GA 30314 8.640% ACT/360 $ 1,542,554.00 $1,530,536.89 111
A94 Modesto CA 95350 8.625% 30/360 $ 1,575,000.00 $1,524,085.44 74
A95 Oceanside CA 92054 7.178% ACT/360 $ 1,500,000.00 $1,472,953.74 96
A96 Chicago IL 60647 7.630% ACT/360 $ 1,450,000.00 $1,436,934.21 106
A97 Yuma AZ 85364 7.127% ACT/360 $ 1,440,000.00 $1,414,720.98 97
A98 College Station TX 77845 7.560% ACT/360 $ 1,400,000.00 $1,387,160.65 106
A99 Los Angeles CA 90057 8.100% ACT/360 $ 1,300,000.00 $1,291,778.31 109
A100 Provo UT 84604 7.930% ACT/360 $ 1,119,000.00 $1,109,663.43 106
A101 Bronx NY 10452 7.870% ACT/360 $ 1,071,000.00 $1,048,399.66 88
A102 Phoenix AZ 85014 7.963% ACT/360 $ 1,025,000.00 $1,012,382.22 100
A103 San Ysidro CA 92173 8.280% ACT/360 $ 1,000,000.00 $ 993,966.64 109
A104 Pasedena TX 77504 8.125% ACT/360 $ 1,000,000.00 $ 981,974.44 102
A105 New York NY 10031 7.490% ACT/360 $ 868,000.00 $ 852,161.93 106
A106 Minneapolis MN 55418 8.420% ACT/360 $ 805,000.00 $ 795,656.01 107
A107 Bronx NY 10463 7.280% ACT/360 $ 813,000.00 $ 796,119.57 92
A108 Bronx NY 10031 7.750% ACT/360 $ 771,000.00 $ 759,939.77 110
A109 Dallas TX 75201 8.680% ACT/360 $26,518,000.00 $26,313,039.06 111
A110 Southfield MI 48034 8.080% ACT/360 $10,649,600.00 $10,594,358.38 99
B111 Menlo Park CA 94025 7.820% 30/360 $ 8,000,000.00 $7,583,133.74 78
A112 San Rafael CA 94901 7.200% ACT/360 $ 7,520,000.00 $7,399,941.98 106
A113 Calabasas CA 91301 6.900% ACT/360 $ 6,400,000.00 $6,292,452.00 99
A114 Glendale CA 91202 6.990% ACT/360 $ 5,313,000.00 $5,212,959.74 96
A115 Seattle WA 98101 7.790% ACT/360 $ 4,919,000.00 $4,859,032.10 108
A116 Ellicott City (Columbia) MD 21043 7.870% ACT/360 $ 4,247,290.00 $4,196,290.18 108
A117 Multiple SC Multiple 8.380% ACT/360 $ 3,800,000.00 $3,765,794.70 110
B118 Seattle WA 98103 7.500% 30/360 $ 3,515,000.00 $3,340,041.68 81
B119 Everett WA 98208 7.690% 30/360 $ 2,950,000.00 $2,861,872.04 96
B120 Portland OR 97204 7.320% 30/360 $ 3,000,000.00 $2,836,216.21 88
B121 Culver City CA 90230 7.280% 30/360 $ 5,200,000.00 $2,213,014.52 17
A122 San Diego CA 92101 8.030% ACT/360 $ 2,523,000.00 $2,505,546.04 108
A123 Scottsdale AZ 85260 8.260% ACT/360 $ 1,987,500.00 $1,976,801.40 110
A124 Vernon Hills IL 60061 7.110% ACT/360 $ 1,775,430.00 $1,746,621.28 106
B125 Mill Creek WA 98012 8.625% 30/360 $ 1,925,000.00 $1,605,082.31 41
A126 Walnut Creek CA 94596 7.955% ACT/360 $ 1,500,000.00 $1,476,042.56 104
A127 Multiple WA Multiple 7.160% ACT/360 $58,000,000.00 $58,000,000.00 110
A128 Secaucus NJ 07094 8.630% ACT/360 $13,800,000.00 $13,681,839.04 110
A129 Lake Mary FL 32746 7.550% ACT/360 $ 6,300,000.00 $6,059,308.93 159
A130 High Point NC 27265 8.973% ACT/360 $ 4,200,000.00 $4,162,417.20 109
B131 Anaheim CA 92802 8.250% 30/360 $ 4,350,000.00 $3,413,217.81 96
A132 Killeen TX 76541 8.910% ACT/360 $ 2,660,000.00 $2,638,489.68 110
B133 Anchorage AK 99501 8.550% ACT/360 $ 2,000,000.00 $1,779,731.02 65
A134 Moline IL 61265 8.890% ACT/360 $10,312,500.00 $10,236,059.40 111
A135 Peoria IL 61614 8.890% ACT/360 $ 8,775,000.00 $8,709,956.02 111
B136 Hillsboro OR 97123 8.250% 30/360 $10,000,000.00 $9,614,820.63 86
A137 Boyertown PA 19512 6.770% ACT/360 $ 7,800,000.00 $7,570,818.72 97
A138 Merced CA 95348 6.770% ACT/360 $ 7,100,000.00 $6,891,386.41 97
A139 Novato CA 94947 8.440% ACT/360 $ 2,050,000.00 $2,026,300.36 107
A140 San Diego CA 92111 8.110% ACT/360 $12,560,000.00 $12,415,966.81 108
B141 Los Gatos CA 95030 7.795% 30/360 $ 3,640,000.00 $3,326,721.46 77
B142 Paramount CA 90723 9.750% 30/360 $ 4,000,000.00 $3,108,296.04 112
B143 Seattle WA 98144 8.625% 30/360 $ 3,220,000.00 $3,102,760.10 86
B144 Medford OR 97504 8.300% 30/360 $ 3,000,000.00 $2,908,683.46 93
A145 Phoenix AZ 85034 8.025% ACT/360 $ 1,762,500.00 $1,741,139.67 100
B146 Redmond WA 98052 8.875% 30/360 $ 1,590,000.00 $1,534,257.26 86
B147 Oceanside CA 92054 8.500% ACT/360 $ 2,000,000.00 $1,434,310.48 102
A148 San Diego CA 92111 8.200% ACT/360 $ 465,000.00 $ 456,315.87 101
A149 Pittsburg CA 94565 7.800% ACT/360 $ 6,400,000.00 $6,361,078.65 110
A150 Lexington Park MD 20653 8.450% ACT/360 $ 3,500,000.00 $3,479,819.38 109
B151 Ketchum ID 83340 7.375% 30/360 $ 2,150,000.00 $2,096,962.41 100
B152 Troutdale OR 97060 7.750% 30/360 $ 2,010,000.00 $1,871,432.08 67
A153 Tucson AZ 85706 7.800% ACT/360 $ 1,700,000.00 $1,682,875.51 110
B154 Las Vegas NV 89119 8.125% 30/360 $ 8,100,000.00 $7,707,141.84 43
B155 Anchorage AK 99501 7.130% 30/360 $ 6,000,000.00 $5,838,228.56 63
A156 Multiple TX Multiple 8.490% ACT/360 $ 5,132,000.00 $5,098,589.95 107
B157 Monroe WA 98272 8.500% 30/360 $ 2,450,000.00 $2,163,381.38 69
B158 Kirkland WA 98033 8.000% 30/360 $ 2,250,000.00 $2,081,378.00 156
A159 Stallings (Indian Trail) NC 28079 8.150% ACT/360 $ 1,160,000.00 $1,149,075.83 110
Sequence Stated Primary Master Ownership
Number Maturity Date Due Day Monthly Payment Admin. Fee Servicing Fee Servicing Fee Interest
- ------------------------------------------------------------------------------------------------------------------------------------
A1 8/1/2009 1st $ 130,041.97 0.14375% 0.10000% 0.14075% Fee Simple
A2 8/1/2009 1st $ 87,649.20 0.14375% 0.10000% 0.14075% Fee Simple
A3 1/1/2009 1st $ 172,566.52 0.14375% 0.10000% 0.14075% Fee Simple
A4 11/1/2009 1st $ 168,070.77 0.14375% 0.10000% 0.14075% Fee Simple
A5 9/1/2009 1st $ 124,523.57 0.14375% 0.10000% 0.14075% Fee Simple
A6 2/1/2012 1st $ 92,366.51 0.14375% 0.10000% 0.14075% Fee Simple
A7 2/1/2012 1st $ 32,254.97 0.14375% 0.10000% 0.14075% Fee Simple
A8 8/1/2009 1st $ 127,595.83 0.14375% 0.10000% 0.14075% Fee Simple
A9 8/1/2009 1st $ 60,953.79 0.14375% 0.10000% 0.14075% Fee Simple
A10 8/1/2009 1st $ 58,449.53 0.14375% 0.10000% 0.14075% Fee Simple
A11 8/1/2009 1st $ 45,925.90 0.14375% 0.10000% 0.14075% Fee Simple
A12 11/1/2009 1st $ 42,947.13 0.14375% 0.10000% 0.14075% Fee Simple
A13 8/1/2009 1st $ 39,628.39 0.14375% 0.10000% 0.14075% Fee Simple
B14 8/1/2011 1st $ 58,858.59 0.14375% 0.10000% 0.14075% Fee Simple
A15 4/1/2018 1st $ 34,133.17 0.14375% 0.10000% 0.14075% Fee Simple
A16 9/1/2009 1st $ 31,704.77 0.12375% 0.08000% 0.12075% Fee Simple
A17 8/1/2014 1st $ 35,131.97 0.14375% 0.10000% 0.14075% Leasehold
A18 10/1/2009 1st $ 28,689.37 0.14375% 0.10000% 0.14075% Fee Simple
B19 8/1/2003 1st $ 35,480.26 0.14375% 0.10000% 0.14075% Fee Simple
A20 7/1/2009 1st $ 28,113.89 0.14375% 0.10000% 0.14075% Fee Simple
B21 10/1/2004 1st $ 34,177.37 0.14375% 0.10000% 0.14075% Fee Simple
A22 8/1/2008 1st $ 26,563.15 0.14375% 0.10000% 0.14075% Fee Simple
A23 11/1/2008 1st $ 23,950.89 0.14375% 0.10000% 0.14075% Fee Simple
B24 6/28/2001 1st $ 41,600.20 0.14375% 0.10000% 0.14075% Leasehold
A25 10/1/2014 1st $ 23,193.99 0.14375% 0.10000% 0.14075% Fee Simple
A26 9/1/2009 1st $ 25,051.73 0.14375% 0.10000% 0.14075% Fee Simple
B27 11/1/2003 1st $ 31,186.30 0.14375% 0.10000% 0.14075% Fee Simple
B28 1/1/2008 1st $ 24,805.14 0.14375% 0.10000% 0.14075% Fee Simple
A29 8/1/2009 1st $ 22,299.91 0.14375% 0.10000% 0.14075% Fee Simple
B30 7/1/2001 1st $ 22,659.86 0.14375% 0.10000% 0.14075% Fee Simple
B31 3/1/2005 1st $ 25,043.34 0.14375% 0.10000% 0.14075% Fee Simple
A32 8/1/2009 1st $ 20,239.12 0.14375% 0.10000% 0.14075% Fee Simple
A33 8/1/2009 1st $ 19,543.48 0.14375% 0.10000% 0.14075% Fee Simple
B34 9/1/2003 1st $ 25,093.20 0.14375% 0.10000% 0.14075% Fee Simple
B35 4/1/2013 1st $ 25,324.78 0.14375% 0.10000% 0.14075% Fee Simple
A36 8/1/2009 1st $ 18,595.83 0.14375% 0.10000% 0.14075% Fee Simple
A37 7/1/2009 1st $ 17,643.82 0.14375% 0.10000% 0.14075% Fee Simple
A38 3/1/2014 1st $ 16,822.25 0.14375% 0.10000% 0.14075% Leasehold
B39 11/1/2001 1st $ 22,438.74 0.14375% 0.10000% 0.14075% Fee Simple
A40 9/1/2008 1st $ 15,307.32 0.14375% 0.10000% 0.14075% Fee Simple
B41 1/1/2006 1st $ 19,839.55 0.14375% 0.10000% 0.14075% Fee Simple
A42 11/1/2008 1st $ 14,503.11 0.14375% 0.10000% 0.14075% Fee Simple
B43 4/1/2007 1st $ 17,633.67 0.14375% 0.10000% 0.14075% Fee Simple
A44 9/1/2009 1st $ 17,292.38 0.14375% 0.10000% 0.14075% Fee Simple
A45 5/1/2009 1st $ 18,135.46 0.14375% 0.10000% 0.14075% Fee Simple
B46 5/1/2012 1st $ 20,285.33 0.14375% 0.10000% 0.14075% Fee Simple
A47 5/1/2009 1st $ 13,336.73 0.14375% 0.10000% 0.14075% Fee Simple
B48 5/1/2004 1st $ 14,651.01 0.14375% 0.10000% 0.14075% Fee Simple
A49 8/1/2009 1st $ 13,647.20 0.24375% 0.20000% 0.24075% Fee Simple
A50 7/1/2009 1st $ 9,915.25 0.14375% 0.10000% 0.14075% Fee Simple
A51 9/1/2009 1st $ 9,165.00 0.14375% 0.10000% 0.14075% Fee Simple
A52 11/1/2009 1st $ 120,901.86 0.14375% 0.10000% 0.14075% Fee Simple
A53 11/1/2009 1st $ 81,947.52 0.14375% 0.10000% 0.14075% Fee Simple
A54 11/1/2009 1st $ 45,049.19 0.14375% 0.10000% 0.14075% Fee Simple
A55 8/1/2009 1st $ 127,954.89 0.14375% 0.10000% 0.14075% Fee Simple
A56 8/1/2009 1st $ 82,886.35 0.26875% 0.22500% 0.26575% Fee Simple
A57 7/1/2009 1st $ 70,622.74 0.14375% 0.10000% 0.14075% Fee Simple
A58 10/1/2009 1st $ 63,923.74 0.14375% 0.10000% 0.14075% Fee Simple
A59 5/1/2009 1st $ 49,354.02 0.14375% 0.10000% 0.14075% Fee Simple
A60 4/1/2008 1st $ 41,212.26 0.14375% 0.10000% 0.14075% Fee Simple
A61 10/1/2009 1st $ 38,495.94 0.14375% 0.10000% 0.14075% Fee Simple
A62 9/1/2010 1st $ 38,889.52 0.14375% 0.10000% 0.14075% Fee Simple
A63 9/1/2007 1st $ 36,744.45 0.19375% 0.15000% 0.19075% Fee Simple
A64 10/1/2009 1st $ 34,833.70 0.14375% 0.10000% 0.14075% Fee Simple
A65 8/10/2006 10th $ 31,859.42 0.14375% 0.10000% 0.14075% Fee Simple
A66 12/1/2003 1st $ 38,060.98 0.14375% 0.10000% 0.14075% Fee Simple
A67 1/1/2001 1st $ 27,632.13 0.14375% 0.10000% 0.14075% Fee Simple
A68 1/1/2001 1st $ 25,765.09 0.14375% 0.10000% 0.14075% Fee Simple
A69 10/1/2009 1st $ 23,061.28 0.14375% 0.10000% 0.14075% Fee Simple
A70 1/1/2009 1st $ 19,989.31 0.14375% 0.10000% 0.14075% Fee Simple
A71 6/1/2006 1st $ 21,995.78 0.14375% 0.10000% 0.14075% Fee Simple
A72 10/1/2006 1st $ 21,451.32 0.14375% 0.10000% 0.14075% Fee Simple
A73 10/1/2000 1st $ 22,669.71 0.14375% 0.10000% 0.14075% Fee Simple
A74 6/1/2009 1st $ 20,204.09 0.14375% 0.10000% 0.14075% Fee Simple
A75 2/1/2008 1st $ 18,528.77 0.14375% 0.10000% 0.14075% Fee Simple
A76 9/1/2009 1st $ 20,050.00 0.14375% 0.10000% 0.14075% Fee Simple
A77 6/1/2009 1st $ 18,019.61 0.14375% 0.10000% 0.14075% Fee Simple
A78 11/1/2013 1st $ 17,228.08 0.14375% 0.10000% 0.14075% Fee Simple
A79 1/1/2007 1st $ 18,761.17 0.14375% 0.10000% 0.14075% Fee Simple
A80 11/1/2009 1st $ 19,341.40 0.14375% 0.10000% 0.14075% Fee Simple
A81 8/1/2009 1st $ 17,557.55 0.14375% 0.10000% 0.14075% Fee Simple
A82 7/1/2009 1st $ 17,271.07 0.14375% 0.10000% 0.14075% Fee Simple
A83 4/1/2006 1st $ 19,337.49 0.14375% 0.10000% 0.14075% Fee Simple
A84 11/1/2008 1st $ 15,274.06 0.14375% 0.10000% 0.14075% Fee Simple
A85 7/1/2009 1st $ 15,474.92 0.14375% 0.10000% 0.14075% Fee Simple
A86 12/1/2007 1st $ 15,301.95 0.24375% 0.20000% 0.24075% Fee Simple
A87 8/1/2009 1st $ 15,409.06 0.14375% 0.10000% 0.14075% Fee Simple
A88 12/1/2008 1st $ 13,984.61 0.14375% 0.10000% 0.14075% Fee Simple
A89 6/1/2009 1st $ 13,249.57 0.14375% 0.10000% 0.14075% Fee Simple
A90 5/1/2009 1st $ 12,758.87 0.14375% 0.10000% 0.14075% Fee Simple
A91 7/1/2009 1st $ 12,605.22 0.14375% 0.10000% 0.14075% Fee Simple
A92 1/1/2009 1st $ 10,779.50 0.14375% 0.10000% 0.14075% Fee Simple
A93 11/1/2009 1st $ 12,566.93 0.14375% 0.10000% 0.14075% Fee Simple
A94 10/1/2006 1st $ 12,248.33 0.14375% 0.10000% 0.14075% Fee Simple
A95 8/1/2008 1st $ 10,159.49 0.14375% 0.10000% 0.14075% Fee Simple
A96 6/1/2009 1st $ 10,268.00 0.14375% 0.10000% 0.14075% Fee Simple
A97 9/1/2008 1st $ 9,703.49 0.14375% 0.10000% 0.14075% Fee Simple
A98 6/1/2009 1st $ 9,846.59 0.14375% 0.10000% 0.14075% Fee Simple
A99 9/1/2009 1st $ 9,629.72 0.14375% 0.10000% 0.14075% Fee Simple
A100 6/1/2009 1st $ 8,156.29 0.14375% 0.10000% 0.14075% Fee Simple
A101 12/1/2007 1st $ 7,761.78 0.29375% 0.25000% 0.29075% Fee Simple
A102 12/1/2008 1st $ 7,494.67 0.14375% 0.10000% 0.14075% Fee Simple
A103 9/1/2009 1st $ 7,533.77 0.14375% 0.10000% 0.14075% Fee Simple
A104 2/1/2009 1st $ 7,801.15 0.14375% 0.10000% 0.14075% Fee Simple
A105 6/1/2009 1st $ 6,063.24 0.29375% 0.25000% 0.29075% Fee Simple
A106 7/1/2009 1st $ 6,438.74 0.14375% 0.10000% 0.14075% Fee Simple
A107 4/1/2008 1st $ 5,562.65 0.29375% 0.25000% 0.29075% Fee Simple
A108 10/1/2009 1st $ 5,523.54 0.29375% 0.25000% 0.29075% Fee Simple
A109 11/1/2009 1st $ 216,756.31 0.14375% 0.10000% 0.14075% Leasehold
A110 11/1/2008 1st $ 78,737.73 0.14375% 0.10000% 0.14075% Fee Simple
B111 2/1/2007 1st $ 60,794.42 0.14375% 0.10000% 0.14075% Fee Simple
A112 6/1/2009 1st $ 54,113.07 0.14375% 0.10000% 0.14075% Fee Simple
A113 11/1/2008 1st $ 42,150.41 0.14375% 0.10000% 0.14075% Fee Simple
A114 8/1/2008 1st $ 35,311.85 0.14375% 0.10000% 0.14075% Fee Simple
A115 8/1/2009 1st $ 37,283.89 0.14375% 0.10000% 0.14075% Fee Simple
A116 8/1/2009 1st $ 32,416.35 0.14375% 0.10000% 0.14075% Fee Simple
A117 10/1/2009 1st $ 30,291.95 0.14375% 0.10000% 0.14075% Fee Simple
B118 5/1/2007 1st $ 25,986.26 0.14375% 0.10000% 0.14075% Fee Simple
B119 8/1/2008 1st $ 22,166.12 0.14375% 0.10000% 0.14075% Fee Simple
B120 11/1/2007 1st $ 21,819.68 0.14375% 0.10000% 0.14075% Fee Simple
B121 1/1/2002 1st $ 61,129.48 0.14375% 0.10000% 0.14075% Fee Simple
A122 8/1/2009 1st $ 18,565.67 0.14375% 0.10000% 0.14075% Fee Simple
A123 10/1/2009 1st $ 14,945.40 0.14375% 0.10000% 0.14075% Fee Simple
A124 6/1/2009 1st $ 12,673.23 0.14375% 0.10000% 0.14075% Fee Simple
B125 1/1/2004 1st $ 16,858.20 0.14375% 0.10000% 0.14075% Fee Simple
A126 4/1/2009 1st $ 11,532.56 0.14375% 0.10000% 0.14075% Fee Simple
A127 10/1/2009 1st $ 436,918.21 0.09375% 0.05000% 0.09075% Fee Simple
A128 10/1/2009 1st $ 112,332.90 0.14375% 0.10000% 0.14075% Leasehold
A129 11/1/2013 1st $ 50,945.16 0.14375% 0.10000% 0.14075% Fee Simple
A130 9/1/2009 1st $ 35,168.62 0.09375% 0.05000% 0.09075% Fee Simple
B131 8/1/2008 1st $ 27,844.52 0.14375% 0.10000% 0.14075% Leasehold
A132 10/1/2009 1st $ 22,158.91 0.14375% 0.10000% 0.14075% Fee Simple
B133 1/1/2006 1st $ 17,506.49 0.14375% 0.10000% 0.14075% Fee Simple
A134 11/1/2009 1st $ 85,766.65 0.14375% 0.10000% 0.14075% Fee Simple
A135 11/1/2009 1st $ 72,979.62 0.14375% 0.10000% 0.14075% Fee Simple
B136 10/1/2007 1st $ 78,845.01 0.14375% 0.10000% 0.14075% Fee Simple
A137 9/1/2008 1st $ 53,989.65 0.14375% 0.10000% 0.14075% Fee Simple
A138 9/1/2008 1st $ 49,144.42 0.14375% 0.10000% 0.14075% Fee Simple
A139 7/1/2009 1st $ 16,424.35 0.14375% 0.10000% 0.14075% Fee Simple
A140 8/1/2009 1st $ 97,857.13 0.14375% 0.10000% 0.14075% Fee Simple
B141 1/1/2007 1st $ 29,983.67 0.14375% 0.10000% 0.14075% Fee Simple
B142 11/15/2009 1st $ 42,374.51 0.14375% 0.10000% 0.14075% Fee Simple
B143 10/1/2007 1st $ 26,200.11 0.14375% 0.10000% 0.14075% Fee Simple
B144 5/1/2008 1st $ 23,753.83 0.14375% 0.10000% 0.14075% Fee Simple
A145 12/1/2008 1st $ 12,963.33 0.14375% 0.10000% 0.14075% Fee Simple
B146 10/1/2007 1st $ 13,207.39 0.14375% 0.10000% 0.14075% Fee Simple
B147 2/1/2009 1st $ 19,694.79 0.14375% 0.10000% 0.14075% Fee Simple
A148 1/1/2009 1st $ 3,650.77 0.14375% 0.10000% 0.14075% Fee Simple
A149 10/1/2009 1st $ 46,071.71 0.14375% 0.10000% 0.14075% Fee Simple
A150 9/1/2009 1st $ 26,788.05 0.14375% 0.10000% 0.14075% Fee Simple
B151 12/1/2008 1st $ 15,713.91 0.14375% 0.10000% 0.14075% Fee Simple
B152 3/1/2006 1st $ 15,182.11 0.14375% 0.10000% 0.14075% Fee Simple
A153 10/1/2009 1st $ 12,896.44 0.14375% 0.10000% 0.14075% Fee Simple
B154 3/1/2004 1st $ 63,189.32 0.14375% 0.10000% 0.14075% Leasehold
B155 11/1/2005 1st $ 42,905.63 0.14375% 0.10000% 0.14075% Fee Simple
A156 7/1/2009 1st $ 39,424.27 0.14375% 0.10000% 0.14075% Fee Simple
B157 5/1/2006 1st $ 20,822.94 0.14375% 0.10000% 0.14075% Fee Simple
B158 8/1/2013 1st $ 21,502.17 0.14375% 0.10000% 0.14075% Fee Simple
A159 10/1/2009 1st $ 9,068.64 0.14375% 0.10000% 0.14075% Fee Simple
Sequence Measurement Original Amortization
Number Crossed Property Type Total Units Unit (months)
- ------------------------------------------------------------------------------------------------------------------------------------
A1 Yes(1) Retail 37,210 SF 360
A2 Yes(1) Retail 29,088 SF 360
A3 No Retail 540,070 SF 360
A4 No Retail 124,614 SF 360
A5 No Retail 295,300 SF 360
A6 Yes(2) Retail 722,209 SF 360
A7 Yes(2) Retail 201,922 SF 360
A8 No Retail 262,648 SF 360
A9 No Retail 154,398 SF 360
A10 No Retail 124,218 SF 360
A11 No Retail 19,740 SF 360
A12 No Retail 60,560 SF 360
A13 No Retail 67,538 SF 360
B14 No Retail 24,435 SF 180
A15 No Retail 84,098 SF 283
A16 No Retail 100,882 SF 360
A17 No Retail 47,000 SF 240
A18 No Retail 45,891 SF 360
B19 No Retail 84,527 SF 300
A20 No Retail 56,200 SF 360
B21 No Retail 41,760 SF 298
A22 No Retail 31,080 SF 300
A23 No Retail 27,567 SF 360
B24 No Retail 37,793 SF 180
A25 No Retail 46,444 SF 360
A26 No Retail 45,663 SF 360
B27 No Retail 53,222 SF 228
B28 No Retail 22,655 SF 300
A29 No Retail 37,410 SF 300
B30 No Retail 65,911 SF 300
B31 No Retail 79,698 SF 300
A32 No Retail 33,593 SF 360
A33 No Retail 33,620 SF 300
B34 No Retail 30,000 SF 240
B35 No Retail 32,831 SF 180
A36 No Retail 24,261 SF 360
A37 No Retail 35,640 SF 360
A38 No Retail 45,978 SF 360
B39 No Retail 52,304 SF 240
A40 No Retail 20,000 SF 360
B41 No Retail 42,024 SF 240
A42 No Retail 25,425 SF 353
B43 No Retail 19,348 SF 300
A44 No Retail 57,885 SF 240
A45 No Retail 152,511 SF 180
B46 No Retail 49,332 SF 180
A47 No Retail 25,200 SF 300
B48 No Retail 31,500 SF 240
A49 No Retail 32,000 SF 180
A50 No Retail 28,285 SF 300
A51 No Retail 16,660 SF 240
A52 Yes(3) Multifamily 582 Units 360
A53 Yes(3) Multifamily 348 Units 360
A54 Yes(3) Multifamily 210 Units 360
A55 No Multifamily 332 Units 360
A56 No Multifamily 192 Units 360
A57 No Multifamily 223 Units 360
A58 No Multifamily 408 Units 360
A59 No Multifamily 168 Units 360
A60 No Multifamily 305 Units 342
A61 No Multifamily 164 Units 360
A62 No Multifamily 152 Units 360
A63 No Multifamily 198 Units 360
A64 No Multifamily 228 Units 360
A65 No Multifamily 208 Units 300
A66 No Multifamily 390 Units 240
A67 No Multifamily 96 Units 300
A68 No Multifamily 96 Units 300
A69 No Multifamily 96 Units 360
A70 No Multifamily 51 Units 360
A71 No Multifamily 133 Units 360
A72 No Multifamily 85 Units 300
A73 No Multifamily 125 Units 300
A74 No Multifamily 177 Units 360
A75 No Multifamily 60 Units 360
A76 No Multifamily 192 Units 300
A77 No Multifamily 84 Units 360
A78 No Multifamily 96 Units 360
A79 No Multifamily 31 Units 360
A80 No Multifamily 120 Units 360
A81 No Multifamily 144 Units 360
A82 No Multifamily 54 Units 360
A83 No Multifamily 80 Units 300
A84 No Multifamily 50 Units 360
A85 No Multifamily 64 Units 360
A86 No Multifamily 57 Units 360
A87 No Multifamily 91 Units 360
A88 No Multifamily 54 Units 360
A89 No Multifamily 72 Units 360
A90 No Multifamily 45 Units 360
A91 No Multifamily 44 Units 360
A92 No Multifamily 28 Units 360
A93 No Multifamily 96 Units 300
A94 No Multifamily 42 Units 360
A95 No Multifamily 24 Units 360
A96 No Multifamily 10 Units 360
A97 No Multifamily 95 Units 360
A98 No Multifamily 66 Units 360
A99 No Multifamily 65 Units 360
A100 No Multifamily 24 Units 360
A101 No Multifamily 58 Units 360
A102 No Multifamily 32 Units 360
A103 No Multifamily 31 Units 360
A104 No Multifamily 60 Units 300
A105 No Multifamily 49 Units 360
A106 No Multifamily 41 Units 300
A107 No Multifamily 59 Units 360
A108 No Multifamily 60 Units 360
A109 No Office 349,810 SF 300
A110 No Office 77,764 SF 360
B111 No Office 43,342 SF 300
A112 No Office 34,025 SF 300
A113 No Office 59,237 SF 360
A114 No Office 54,527 SF 360
A115 No Office 55,232 SF 300
A116 No Office 38,081 SF 300
A117 No Office 47,902 SF 300
B118 No Office 32,680 SF 300
B119 No Office 18,541 SF 300
B120 No Office 55,694 SF 300
B121 No Office 105,837 SF 120
A122 No Office 30,122 SF 360
A123 No Office 20,433 SF 360
A124 No Office 26,943 SF 300
B125 No Office 15,017 SF 240
A126 No Office 20,731 SF 300
A127 No Hotel 1,005 Rooms 264
A128 No Hotel 151 Rooms 300
A129 No Hotel 123 Rooms 240
A130 No Hotel 62 Rooms 300
B131 No Hotel 290 Rooms 181
A132 No Hotel 63 Rooms 300
B133 No Hotel 38 Rooms 237
A134 Yes(4) Health Care 120 Beds 300
A135 Yes(4) Health Care 120 Beds 300
B136 No Health Care 144 Units 300
A137 No Health Care 112 Units 300
A138 No Health Care 113 Units 300
A139 No Health Care 50 Beds 300
A140 No Industrial 118,264 SF 300
B141 No Industrial 66,210 SF 240
B142 No Industrial 192,700 SF 180
B143 No Industrial 68,881 SF 300
B144 No Industrial 84,820 SF 300
A145 No Industrial 33,214 SF 360
B146 No Industrial 41,298 SF 300
B147 No Industrial 93,160 SF 180
A148 No Industrial 8,250 SF 300
A149 No Mobile Home 367 Pads 360
A150 No Mobile Home 300 Pads 360
B151 No Mobile Home 157 Pads 300
B152 No Mobile Home 77 Pads 300
A153 No Mobile Home 276 Pads 300
B154 No Special Purpose 118,331 SF 300
B155 No Special Purpose 74,923 SF 300
A156 No Mini Storage 193,489 SF 360
B157 No Mini Storage 96,980 SF 240
B158 No Mini Storage 55,375 SF 180
A159 No Mini Storage 61,530 SF 300
SCHEDULE II
SCHEDULE OF MORTGAGE LOANS UNDER SECTION 3.08(E)
Loan No. Description Loan Amount
4542437 David W. Holtzerland $2,450,000.00
SCHEDULE III
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE ORIGINAL CLOSING DATE
BANK OF AMERICA, N.A. SUB-SERVICING AGREEMENT
Agreement (with respect to each of the Sub-Servicers listed below)
Amended and Restated Master Subservicing Agreement for Securitization
Transactions, dated as of March 25, 1998, among Bank of America, N.A. (successor
in interest to NationsBank, N.A.), Berkshire Mortgage Finance Corporation, First
Security Bank, N.A., L.J. Melody & Company, Patrician Financial Company Limited
Partnership and Prudential MultiFamily Mortgage, Inc. (successor in interest to
Washington Mortgage Financial Group, Ltd.), as supplemented by Sub-Servicer
Addition Agreements dated September 25, 1998 executed by ARCS Commercial
Mortgage Co., L.P., a California limited partnership, and Bank of America, N.A.
(successor in interest to Bank of America NT&SA) and as supplemented by the
Confirmation thereto dated December 21, 1999.
Sub-Servicers
ARCS Commercial Mortgage Co., L.P., a California limited partnership
Bank of America, N.A.
Berkshire Mortgage Finance Corporation
First Security Bank, N.A.
L.J. Melody & Company
Patrician Financial Company Limited Partnership
Prudential MultiFamily Mortgage, Inc.
SCHEDULE P9
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (IX)
51699 BEST WESTERN STOVALL'S INN: Pending condemnation action.
SCHEDULE P41(A)
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLI)(A)
51734 INT'L AVIATION AIR CARGO TERMINAL: The ground lease does not contain such
a provision.
SCHEDULE P41(B)
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLI)(B)
51727 GATEWAY CROSSING ENTERTAINMENT COMPLEX: The ground lease does not contain
a provision regarding priority.
51734 INT'L AVIATION AIR CARGO TERMINAL: The ground lease does not contain a
provision regarding priority.
SCHEDULE P41(K)
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (XLI)(K)
51727 GATEWAY CROSSING ENTERTAINMENT COMPLEX: Rent increases every five (5)
years.
51734 INT'L AVIATION AIR CARGO TERMINAL: Rent increases every three (3) years.
SCHEDULE P59
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (LIX)
51749 ROSEWOOD PARK RETIREMENT: The loan documents do not contain any provision
with respect to subordinate financing.
SCHEDULE P61
EXCEPTIONS TO PORTFOLIO MORTGAGE LOAN REPRESENTATION (LXI)
Loan No. 4542437, David W. Holtzerland, in the amount of $2,450,000.
There is secondary financing by Bank of America which is not included in
Series 2000-1 (Loan No. 4548350, David W. Holtzerland, in the amount of
$420,000).
SCHEDULE C9
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (IX)
51562 WHITE HORSE COMMONS SHOPPING CENTER: Right of way taking in
progress with respect to 552
square foot strip of land.
Release of such strip has
been agreed to by lender.
SCHEDULE C23
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XXIII)
51521 MANSFIELD PLAZA: There is an encroachment of the building on the setback
lines. However, the title company insures against forfeiture of title due to
such encroachment.
51546 256 WORTH AVENUE: It appears that the building may violate the setback
line. However, the title company does not take exception for such a violation.
51671 WAL-MART STORES PORTFOLIO 2: A significant portion of the Denham Springs,
LA store lies outside of the boundary of the Mortgaged Property. The title
policy takes exception for this encroachment.
SCHEDULE C43
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLIII)
The Mortgagor for the following loan is not a Single-Purpose Entity:
50787 1121 Morrison Avenue
SCHEDULE C44
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLIV)
51524 RAINTREE TOWNE CENTER: Lender agrees to release a parcel of approximately
7 acres upon the subdivision and purchase of the parcel by the ground tenant.
SCHEDULE C45
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLV)
The loan documents for the following loans permit specified additional
financing:
51637 Rosewood Care Center - Moline
51638 Rosewood Care Center - Peoria
SCHEDULE C46(C)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVI) (C)
51051 WALNUT WOODS OF BOYERTOWN: Not addressed in loan documents.
The loan documents for the following loans were silent as to 2(a), 3(b) and
3(c):
51637 Rosewood Care Center - Moline
51638 Rosewood Care Center - Peoria
SCHEDULE C48(A)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII) (A)
50814 TOWN CENTER: The ground lease does not contain such a provision and there
was no estoppel certificate in the file.
SCHEDULE C48(B)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII) (B)
51635 RADISSON SUITES - SECAUCUS, NJ: There is a fee mortgage as an exception in
the title policy.
SCHEDULE C48(C)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII)(C)
51636 RADISSON SUITES, SECAUCUS, NJ: Until September 2000, all proceeds are to
be applied to restoration regardless of whether or not there is a total loss or
taking.
SCHEDULE C48(G)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII) (G)
50889 BARNES & NOBLE/CHILI'S: The ground lease does not contain such a
provision.
50814 TOWN CENTER: : The ground lease does not contain such a provision.
SCHEDULE C48(H)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII) (G)
MORTGAGE LOAN #51635 RADISSON SUITES - SECAUCUS, NJ: The ground lessor has the
option to purchase the Loan Documents prior to a foreclosure. The purchase price
shall be (i) the outstanding principal amount of, plus the accrued and unpaid
interest on, the note secured by the leasehold mortgage and (ii) the amount of
all advances made by the Leasehold Mortgagee to cure defaults by Tenant under
the lease or otherwise made to protect the security interest of the Leasehold
Mortgagee plus all accrued and unpaid interest on such advances.
SCHEDULE C48(J)
EXCEPTIONS TO CONDUIT MORTGAGE LOAN REPRESENTATION (XLVIII) (J)
50889 BARNES & NOBLE/CHILI'S: Rent increases throughout term.