EXHIBIT 4
Pooling and Servicing Agreement
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BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Mortgage Loan Seller,
BRIDGER COMMERCIAL REALTY FINANCE LLC
Mortgage Loan Seller,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer,
LENNAR PARTNERS, INC.,
Special Servicer,
and
WELLS FARGO BANK MINNESOTA, N. A.,
Trustee and REMIC Administrator,
---------------------------------
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2001
(Amending and Restating the Pooling and Servicing Agreement
dated as of May 1, 2001)
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 2001-1
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TABLE OF CONTENTS
Section Page
- ------- ----
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 and Loan REMIC Interests..........
SECTION 2.02 Acceptance of REMIC I by Trustee...............................
SECTION 2.03 Mortgage Loan Sellers' 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
Sellers........................................................
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 MA-1 and Class MA-2
Uncertificated Interests; Acceptance of such Interests
by the Trustee.................................................
SECTION 2.13 Issuance of the Class R-IIU Certificates; Creation of
the REMIC IIU Regular Interests................................
SECTION 2.14 Conveyance of the Class UA-1, Class UA-2, Class UA-2F,
Class MB, Class MC, Class MD, Class ME, Class MF,
Class MG, Class MH and Class MJ Uncertificated
Interests; Acceptance of such Interests by the Trustee.........
SECTION 2.15 Issuance of the REMIC III Certificates and the Class
A-2F Regular Interest..........................................
SECTION 2.16 Conveyance of the Class A-2F Certificates, the Loan
REMIC Residual Interests and the Excess Interest...............
SECTION 2.17 Issuance of Class A-2F Certificates and Class V
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 IIU
Distribution Account, the REMIC III Distribution Account
and the Floating Rate 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, the Excess Interest
Distribution 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; Asset Status Report..........
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 Maintenance of Mortgage Loan Environmental Policy..............
SECTION 3.28 Swap Documents.................................................
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.......................................
SECTION 4.06 Excess Interest Distribution 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 SELLERS, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer and the REMIC
Administrator..................................................
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Sellers, 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 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 AND GRANTOR TRUST 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..................................................
SECTION 10.05 Grantor Trust Administration...................................
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-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-2F Certificate
EXHIBIT A-4 Form of Class X Certificate
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Form of Class N Certificate
EXHIBIT A-17 Form of Class O Certificate
EXHIBIT A-18 Form of Class P Certificate
EXHIBIT A-19 Form of Class R-I Certificate
EXHIBIT A-20 Form of Class R-II Certificate
EXHIBIT A-21 Form of Class V Certificate
EXHIBIT A-22 Form of Class R-IIU Certificate
EXHIBIT A-23 Form of Class R-III 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 Form of Servicer Watch List
EXHIBIT K Form of NOI Adjustment Worksheet
EXHIBIT L Environmental Policy
EXHIBIT M Request for Review
EXHIBIT N Form of CMSA Property File
EXHIBIT O Form of CMSA Financial File
EXHIBIT P Form of Comparative Financial Status Report
EXHIBIT Q Form of Loan Periodic Update File
EXHIBIT R Form of Historical Modification Report
EXHIBIT S Form of Historical Liquidation Report
EXHIBIT T Form of CMSA Loan Set Up File
EXHIBIT U Form of Delinquent Loan Status Report
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Bank of America, N.A. Sub-Servicing Agreements in Effect as
of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE 5 Exception to Section 2.05(c)(v)
SCHEDULE 6 Exception to Section 2.05(c)(vi)
SCHEDULE 13 Exception to Section 2.05(c)(xiii)
SCHEDULE 14 Exception to Section 2.05(c)(xiv)
SCHEDULE 16 Exception to Section 2.05(c)(xvi)
SCHEDULE 18 Exception to Section 2.05(c)(xviii)
SCHEDULE 23 Exception to Section 2.05(c)(xxiii)
SCHEDULE 29 Exception to Section 2.05(c)(xxix)
SCHEDULE 39 Exception to Section 2.05(c)(xxxix)
SCHEDULE 45 Exception to Section 2.05(c)(xlv)
SCHEDULE 48 Exception to Section 2.05(c)(xlviii)
SCHEDULE 53 Exception to Section 2.05(c)(lii)
SCHEDULE 57 Exception to Section 2.05(c)(lvii)
SCHEDULE 60 Exception to Section 2.05(c)(lx)
This Amended and Restated Pooling and Servicing Agreement (this
"Agreement"), is dated and effective as of June 1, 2001, among BANC OF AMERICA
COMMERCIAL MORTGAGE INC., as Depositor, BANK OF AMERICA, N.A., as Mortgage Loan
Seller, BRIDGER COMMERCIAL REALTY FINANCE LLC, as Mortgage Loan Seller, GMAC
COMMERCIAL MORTGAGE CORPORATION, as Master Servicer, Lennar Partners, Inc., as
Special Servicer, and WELLS FARGO BANK MINNESOTA, N. A., as Trustee and as REMIC
Administrator.
PRELIMINARY STATEMENT:
This Agreement, dated and effective as of June 1, 2001, amends and
restates the original pooling and servicing Agreement, dated as of May 1, 2001
(the "Original Pooling Agreement") among Banc of America Commercial Mortgage
Inc., as Depositor, Bank of America, N.A. and Bridger Commercial Realty Finance
LLC, as Mortgage Loan Sellers, GMAC Commercial Mortgage Corporation, as Master
Servicer, Lennar Partners, Inc., as Special Servicer and Wells Fargo Bank
Minnesota, N.A., as Trustee and as REMIC Administrator. 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 B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J 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 and Class A-2 Certificates to be restructured and to be redesignated
as the Class A-1, Class A-2 and Class A-2F Certificates, (ii) resetting the
principal balances of and/or the pass-through rates of the Class A-1, Class A-2
and Class A-2F (as so redesignated), and the Class B, Class C, Class D, Class E,
Class F, Class G and Class H 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 July 2001 and the changes made hereby are effective in respect of such
Distribution Date for the full related Interest Accrual Period that began June
1, 2001.
The Depositor issued the Original Certificates on May 30, 2001
pursuant to the Original Pooling Agreement. Interests in the Trust established
by the Original Pooling Agreement corresponding to the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and the
Class X Certificates being issued under this Agreement (the "New Certificates")
were issued to the Mortgage Loan Sellers in partial consideration for the
Mortgage Loans. Pursuant to this amendment, effective on the Sequel Closing
Date, the Mortgage Loan Sellers 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, Class R-IIU and Class
R-III Certificates. No changes to the Original Pooling Agreement are made hereby
with respect to the Class K, Class L, Class M, Class N, Class O and Class P
Certificates (the "Unaffected Certificates"), or to the Class R-I, Class R-II
and Class V Certificates, and in this and every other respect, except as
expressly amended hereby, the Original Pooling Agreement, continues in full
force and effect. 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, 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 and Company of Texas, LP
(successor in interest to L.J. Melody & Company), Midland Loan Services, Inc.
(successor in interest to Midland Loan Services, L.P.), Berkshire Mortgage
Finance Bethesda Limited Partnership (successor in interest to Patrician
Financial Company) 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 a
Sub-Servicer Addition Agreement dated as of May 30, 2001 by Collateral Mortgage
Capital, LLC, and as made applicable to the securitization transaction
contemplated by this Agreement by the related Confirmation, dated as of May 30,
2001, executed by the Sub-Servicers listed on Schedule III.
As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Class A-2F Regular Interest, the Swap Documents, the Floating
Rate Account, the Excess Interest and the Excess Interest Distribution Account
and the Loan REMIC Residual Interests, be treated for federal income tax
purposes as twenty-five separate real estate mortgage investment conduits
("REMIC I", "REMIC II", "REMIC IIU", and "REMIC III" and the twenty-one "Loan
REMICs" described herein respectively). The Class A-1, Class A-2, Class A-2F
Regular Interest, Class B, Class C, Class D and Class X Certificates 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 UA-1, Class UA-2 and Class UA-2F Uncertificated Interests
constitute the sole Class of "regular interests" in REMIC IIU and the Class
R-IIU Certificates constitute the sole class of "residual interest" in REMIC IIU
for purposes of the REMIC Provisions. Class K, Class L, Class M, Class N, Class
O and Class P Certificates and the Class MA-1, Class MA-2, Class MB, Class MC,
Class MD, Class ME, Class MF, Class MG, Class MH, Class MJ 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
LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ, Class
LK, Class LL, Class LM, Class LN, Class LO and Class LP Uncertificated Interests
constitute "regular interests" in REMIC I and the Class R-I Certificates
constitute the sole Class of "residual interests" in REMIC I for purposes of the
REMIC Provisions. The Depositor intends that the twenty-one Loan REMIC Loans (
as defined herein) each be held as an asset of a single Loan REMIC
(collectively, the "Loan REMICs"), that the Loan REMIC Regular Interests be held
as assets of REMIC I, and that the Loan REMIC Residual Interests be held by the
Trustee on behalf of the Holders of the Class R-I Certificates. The portion of
the Trust Fund consisting of the (i) the Class A-2F Regular Interest and the
Swap Documents, and all payments thereunder, (ii) the Floating Rate Account and
all amounts held from time to time in the Floating Rate Account; (iii) Excess
Interest, (iv) the Excess Interest Distribution Account and (v) the Loan REMIC
Residual Interests shall be treated as a grantor trust (the "Grantor Trust") for
federal income tax purposes. The Class V Certificates will represent beneficial
interests in the portion of the Grantor Trust representing the Excess Interest
and the Excess Interest Distribution Account for federal income tax purposes.
The Class A-2F Certificates will represent beneficial interests in the portion
of the Grantor Trust representing the Class A-2F Regular Interest, the Swap
Documents and the Floating Rate Account for federal income tax purposes. The
Class R-I Certificates will represent beneficial interests in the portion of the
Grantor Trust representing the Loan REMIC Residual Interests for federal income
tax purposes.
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 Sequel Closing Date:
Initial Initial Class
Designation Pass-Through Rate Principal Balance
- ----------- ----------------- -----------------
Class A-1 6.0860% per annum $161,603,149
Class A-2 6.5030% per annum $527,811,659
Class A-2F LIBOR + 0.36% $50,000,000
Class X Variable(2) $948,131,109(3)
Class B 6.6740% per annum $35,576,642
Class C 6.7720% per annum $21,345,985
Class D 6.8510% per annum $18,974,209
Class E 6.9680% per annum(1) $9,487,105
Class F 7.2240% per annum(1) $9,487,105
Class G 7.3240% per annum(1) $18,974,209
Class H 7.5070% per annum(1) $14,230,657
Class J 6.1250% per annum $13,281,946
Class K 6.1250% per annum $23,480,584
Class L 6.1250% per annum $2,134,598
Class M 6.1250% per annum $5,538,842
Class N 6.1250% per annum $6,788,329
Class O 6.1250% per annum $5,883,218
Class P 6.1250% per annum $23,532,872
- ---------------------------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class E, Class F,
Class G and Class H 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.
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
I Regular Interests as of the Sequel Closing Date:
REMIC I Initial
Regular Interest REMIC I Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
Class LA-1 (1) $154,074,751
Class LA-2 (1) $581,340,057
Class LB (1) $35,576,642
Class LC (1) $21,345,985
Class LD (1) $18,974,209
Class LE (1) $9,487,105
Class LF (1) $9,487,105
Class LG (1) $18,974,209
Class LH (1) $14,230,657
Class LJ (1) $13,281,946
Class LK (1) $23,480,584
Class LL (1) $2,134,598
Class LM (1) $5,538,842
Class LN (1) $6,788,329
Class LO (1) $5,883,218
Class LP (1) $23,532,872
- ---------------------------------
(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 Sequel Closing Date:
REMIC II Uncertificated
Regular Interest REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
Class MA-1 (1) $154,074,751
Class MA-2 (1) $581,340,057
Class MB (1) $35,576,642
Class MC (1) $21,345,985
Class MD (1) $18,974,209
Class ME (1) $9,487,105
Class MF (1) $9,487,105
Class MG (1) $18,974,209
Class MH (1) $14,230,657
Class MJ (1) $13,281,946
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 Balances and per annum rates of interest for the REMIC
IIU Regular Interests as of the Sequel Closing Date:
REMIC IIU Regular Interest REMIC IIU Initial Uncertificated
Designation Remittance Rate Principal Balance
Class UA-1 (1) $161,603,149
Class UA-2 (1) $527,811,659
Class UA-2F (1) $50,000,000
- ---------------------------------
(1) The REMIC IIU Remittance Rate for each Class of REMIC IIU Regular
Interests is the Weighted Average Adjusted Net Mortgage Rate.
The following table sets forth the designation, the initial Class
Principal Balance and per annum rate of interest for the REMIC III
Uncertificated Regular Interest as of the Sequel Closing Date:
REMIC III Uncertificated
Regular Interest Initial Initial Class
Designation Pass-Through Rate Principal Balance
Class A-2F 6.5030% $50,000,000
- ---------------------------------
The Class R-I, Class R-II, Class R-IIU and Class R-III Certificates
will be Residual Certificates bearing no Pass-Through Rate and having no initial
Certificate Principal Balances or notional amounts. Any Available Distribution
Amount constituting assets of the Loan REMICs or remaining in the REMIC I
Distribution Account after distributing the REMIC I Distribution Amount 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, if any,
remaining in the Loan REMICs or the REMIC I Distribution Account, as
applicable).
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Sellers, 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 (other than the Class A-2F Certificates) and the Class A-2F Regular
Interest, 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. In the case of the Class A-2F Certificates, Accrued
Certificate Interest shall be calculated on the basis of a 360-day year and the
actual number of days in the Interest Accrual Period. For the avoidance of
doubt, 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".
"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 (or, in the case of an ARD Loan after its Anticipated
Repayment Date, if such rate is less, the related Net Mortgage Rate in effect
for such Mortgage Loan immediately prior to its Anticipated Repayment Date).
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), January and
February shall be treated as having 30 days. In the case of the Loan REMIC
Loans, "Mortgage Loan" shall refer to the related Loan REMIC Regular Interests
for purposes of this definition.
"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 the Loan REMICs,
REMIC I, REMIC II, REMIC IIU and REMIC III, 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.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Mortgage Loan, which date is prior to the Stated Maturity Date
for such Mortgage Loan.
"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 Master Servicer or the Special Servicer, as the case
may be, 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 following each anniversary of such Required
Appraisal Loan's becoming a Required Appraisal Loan 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
(excluding, in the case of an ARD Loan after its Anticipated Repayment Date,
Excess 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 (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.
"ARD Application Priority": Interest received in respect of an ARD
Loan shall be applied as follows: first, to the payment of all interest due but
not yet paid at the interest rate in effect immediately prior to the Anticipated
Repayment Date; second, to the payment of interest due but not yet paid at the
Excess Interest Rate, third; to the payment of Default Interest, if any, due in
respect of the amount described in priority first; and fourth to the payment of
Default Interest, if any, due in respect of the amount described in priority
second.
"ARD Loan": Any Mortgage Loan identified on the Mortgage Schedule as
such pursuant to clause (xviii) under the definition of Mortgage Loan Schedule.
"Asset Disposition Method": As defined in Section 3.18.
"Asset Status Report": As defined in Section 3.21(d).
"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 Sellers' 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 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 (exclusive, in the case of an ARD Loan after its Anticipated Repayment
Date, of Excess 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 Distribution 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) Excess Interest, (v) 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), (vi) any amounts deposited in the
Distribution Account in error, (vii) any amounts payable or reimbursable to any
Person from the Certificate Account pursuant to clauses (ii) through (xvii) of
Section 3.05(a), and (viii) with respect to each Mortgage Loan which accrues
interest on an Actual/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), 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)(vii) of this definition.
"BACM": Banc of America Commercial Mortgage Inc., or its successor
in interest.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date
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.
"Bank of America": Bank of America, N.A., or its successor in
interest.
"Bank of America Mortgage Loan": Any of the BOA Originated Mortgage
Loans and the BOA-Bridger Mortgage Loans. Bank of America Mortgage Loans are
identified as such on the Mortgage Loan Schedule under the heading "Loan
Seller".
"Bank of America/BACM Mortgage Loan Purchase and Sale Agreement":
The Mortgage Loan Purchase and Sale Agreement, dated as of May 30, 2001, between
Bank of America, and the Depositor.
"Bank of America Sub-Servicer": Any one of those Sub-Servicers
listed on Schedule II attached hereto.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction" As defined in Section 4.01(c)
"Base Prospectus": That certain prospectus dated June 12, 2001
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"BCRF": Bridger Commercial Realty Finance LLC, a Missouri limited
liability company.
"BCRF/BACM Mortgage Loan Purchase and Sale Agreement": The Mortgage
Loan Purchase Agreement, dated as of May 30, 2001, between BCRF and the
Depositor.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Bridger Mortgage Loan": Any of the Mortgage Loans acquired by BACM
pursuant to the BCRF/BACM Mortgage Loan Purchase and Sale Agreement. The Bridger
Mortgage Loans are identified as such on the Mortgage Loan Schedule under the
heading "Mortgage Loan Seller".
"BOA-Bridger Mortgage Loan": Any Mortgage Loan purchased by Bank of
America from Bridger Commercial Funding LLC under a mortgage loan purchase
agreement, dated as of February 5, 2001.
"BOA Originated Mortgage Loan": Any Mortgage Loan originated by Bank
of America, its conduit participants, or acquired by Bank of America from a
third-party originator other than Bridger Commercial Funding LLC.
"Business Day": Except with respect to the computation of LIBOR, any
day other than a Saturday, a Sunday or a day on which banking institutions in
New York, Minnesota, Pennsylvania and Florida and the jurisdictions 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. With respect to the computation of
LIBOR, any day other than a day on which banking institutions in London,
England, New York, New York and Columbia, Maryland are authorized by law 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 2001-1 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 "GMAC
Commercial Mortgage Corporation, as Master Servicer, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1, 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 Sellers, 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 Sellers, 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.
"Class": Collectively, all of the Certificates, REMIC I Regular
Interests, REMIC II Uncertificated Regular Interests, REMIC IIU Regular
Interests or REMIC III Uncertificated Regular Interest bearing the same
alphabetical and, if applicable, numerical Class designation.
"Class A Certificate": Any one of the Class A-1, Class A-2 or Class
A-2F Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.0860%.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.5030%.
"Class A-2F Available Funds": In respect of each Distribution Date,
(i) the sum of all previously undistributed payments or other receipts on
account of principal and interest (net of any amounts payable to the Swap
Counterparty under the Swap Documents) on or in respect of the Class A-2F
Regular Interest received by the Trustee after the Cut-off Date and on or prior
to such Distribution Date and (ii) the sum of all amounts received from the Swap
Counterparty pursuant to the Swap Documents, but excluding the following: (a)
all amounts of Prepayment Premiums (to the extent the Swap Counterparty is
entitled to such amounts pursuant to Section 4.01(c)(iv)), and (b) all amounts
required to be paid to the Swap Counterparty pursuant to the Swap Documents.
"Class A-2F Certificate": Any one of the Certificates with a "Class
A-2F" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing an interest in the Grantor Trust as described in
Section 4.01(k).
"Class A-2F Interest Distribution Amount": In respect of any
Distribution Date, the sum of (i) the aggregate amount of interest received by
the Trustee from the Swap Counterparty pursuant to the terms of the Swap
Documents and (ii) amounts in respect of interest received on the Class A-2F
Regular Interest not required to be paid to the Swap Counterparty. With respect
to any Distribution Date, if the Swap Counterparty defaults on its obligation to
pay such interest to the Trustee, or if a Swap Default occurs, the Class A-2F
Interest Distribution Amount for such Distribution Date will equal the
applicable Fixed Interest Distribution.
"Class A-2F Principal Distribution Amount": In respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-2F Regular Interest on such Payment Date.
"Class A-2F Regular Interest": The uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
interest having a Class Principal Balance equal to the Class Principal Balance
of the Class A-2F Certificates, and which has a Pass-Through Rate equal to the
per annum rate of 6.5030% in respect of each 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-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 6.6740%.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 6.7720%.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to 6.8560%.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to 6.9680%;
provided however, that the Class E Pass-Through Rate shall not exceed 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-9
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to 7.2240%;
provided however, that the Class F Pass-Through Rate shall not exceed 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-10
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 7.3240%;
provided however, that the Class G Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to 7.5070%;
provided however, that the Class H Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 6.1250%.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K 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 LK
Uncertificated Interest which corresponds to the Certificate Balance of the
Class K Certificates.
"Class K Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class K Pass-Through Rate.
"Class K Pass-Through Rate": A per annum rate equal to 6.1250%.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "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 of the
Class L Certificates.
"Class L Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class L Pass-Through Rate.
"Class L Pass-Through Rate": A per annum rate equal to 6.1250%.
"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 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 LO 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 LP 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-15
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 for the related Distribution Date
minus the Class M Pass-Through Rate.
"Class M Pass-Through Rate": A per annum rate equal to 6.1250%.
"Class MA-1 Uncertificated Interest": A regular interest in REMIC II
which is held as an asset of REMIC IIU 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 IIU 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 III 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 III 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 III and having the initial Uncertificated
Principal Balance and per annum rate of interest set forth in the Preliminary
Statement hereto.
"Class ME Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class ME Uncertificated
Interest.
"Class ME Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class E Pass-Through
Rate.
"Class ME 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 MF Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class MF Uncertificated
Interest.
"Class MF Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate minus the Class F Pass-Through
Rate.
"Class MF 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 MG Component": That portion of the Class X 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 X 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 X 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 J 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 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 LK, Class LM, Class LN, Class LO and Class LP
Uncertificated Interests which correspond to the Certificate Principal Balances
of the Class K, Class L, Class M, Class N, Class O and Class P 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 K Component, the Class L
Component, the Class M Component, the Class N Component, the Class O Component
and Class P 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-16
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 for the related Distribution Date
minus the Class N Pass-Through Rate.
"Class N Pass-Through Rate": A per annum rate equal to 6.1250%.
"Class O Certificate": Any one of the Certificates with a "Class O"
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 O 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 LO
Uncertificated Interest which corresponds to the Certificate Balance of the
Class O Certificates.
"Class O Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class O Pass-Through Rate.
"Class O Pass-Through Rate": A per annum rate equal to 6.1250%.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P 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 LP
Uncertificated Interest which corresponds to the Certificate Balance of the
Class P Certificates.
"Class P Component Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
minus the Class P Pass-Through Rate.
"Class P Pass-Through Rate": A per annum rate equal to 6.1250%.
"Class 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 Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Initial Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of the
Sequential Pay Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01(b) and, if and to the extent appropriate, shall be further
permanently reduced on such Distribution Date as provided in Section 4.04.
"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
and in each of the Loan REMIC Residual Interests 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-IIU Certificate": Any one of the Certificates with a "Class
R-IIU" 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 IIU 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-23 attached hereto, and evidencing the sole Class of "residual interest" in
REMIC III for purposes of the REMIC Provisions.
"Class UA-1 Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-1 Uncertificated
Interest.
"Class UA-1 Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-1 Pass-Through Rate.
"Class UA-1 Uncertificated Interest": A regular interest in REMIC
IIU 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 UA-2 Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-2 Uncertificated
Interest.
"Class UA-2 Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Class A-2 Pass-Through Rate.
"Class UA-2 Uncertificated Interest": A regular interest in REMIC
IIU 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 UA-2F Component": That portion of the Class X Notional Amount
equal to the Uncertificated Principal Balance of the Class UA-2F Uncertificated
Interest.
"Class UA-2F Component Pass-Through Rate": A per annum rate equal to
the Weighted Average Net Mortgage Rate minus the Pass-Through Rate for the Class
A-2F Regular Interest.
"Class UA-2F Uncertificated Interest": A regular interest in REMIC
IIU 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 V Certificate": A Certificate designated as "Class V" on the
face thereof, substantially in the form of Exhibit A-21 and evidencing an
interest in the Grantor Trust.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-4, and
evidencing a "regular interest" in REMIC III 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-1, Class UA-2, Class UA-2F, Class MB, Class MC, Class MD, Class
ME, Class MF, Class MG, Class MH and Class MJ Uncertificated Interests and (ii)
the Class MX Notional Amount, in each case as of the preceding Distribution Date
(after giving effect to the distributions of principal on such Distribution
Date).
"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-1 Component, Class UA-2 Component, Class UA-2F Component,
Class MB Component, Class MC Component, Class MD Component, Class ME Component,
Class MF Component, Class MG Component, Class MH and Class MJ Component and the
Class MX Pass-Through Rate, weighted on the basis of their respective portions
of the Class X Notional Amount or the Class MX 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 Loan Periodic Update File": As defined in Section 4.02(b).
"CMSA Loan Set Up File": As referenced in Section 4.02(a).
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in 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
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Component": Any of the Class MB Component, Class MC Component,
Class MD Component, Class ME Component, Class MF Component, Class MG Component,
Class MH Component, Class MJ Component, Class UA-1 Component, Class UA-2
Component, Class UA-2F Component, Class K Component, Class L Component, Class M
Component, Class N Component, Class O Component and Class P Component.
"Component Pass-Through Rate": Any of the Class UA-1 Component
Pass-Through Rate, Class UA-2 Component Pass-Through Rate, Class UA-2F Component
Pass-Through Rate, Class MB Component Pass-Through Rate, Class MC Component
Pass-Through Rate, Class MD Component Pass-Through Rate, Class ME Component
Pass-Through Rate, Class MF Component Pass-Through Rate, Class MG Component
Pass-Through Rate, Class MH Component Pass-Through Rate, Class MJ Component
Pass-Through Rate, Class K Component Pass-Through Rate, Class L Component
Pass-Through Rate, Class M Component Pass-Through Rate, Class N Component
Pass-Through Rate, Class O Component Pass-Through Rate and Class P Component
Pass-Through Rate.
"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
largest outstanding Class Principal Balance.
"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, MAC# N 9303-121, Minneapolis, Minnesota 55479-0113, Attention:
Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2001-1 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 2001-1.
"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 IIU Regular Interest": The related Classes of REMIC I
Regular Interests, REMIC II Uncertificated Regular Interests, REMIC IIU Regular
Interests and the Certificates or REMIC III Uncertificated Regular Interest set
forth below:
Corresponding
Corresponding Certificate or
Corresponding REMIC II REMIC III
REMIC I Uncertificated Corresponding REMIC Uncertificated
Regular Interest Regular Interest IIU Regular Interest Regular Interest
- ---------------- ---------------- -------------------- ----------------
Class LA-1 Class MA-1 Class UA-1 Class A-1
Uncertificated Uncertificated Uncertificated Certificate
Interest Interest Interest
Class LA-2 Class MA-2 Class UA-2 Class A-2
Uncertificated Uncertificated Uncertificated Certificate
Interest Interest Interest
and and
Class UA-2F Class A-2F
Uncertificated Certificates and
Interest Class A-2F
Regular Interest
Class LB Class MB Class B
Uncertificated Uncertificated Certificate
Interest Interest
Class LC Class MC Class C
Uncertificated Uncertificated Certificate
Interest Interest
Class LD Class MD Class D
Uncertificated Uncertificated Certificate
Interest Interest
Class LE Class ME Class E
Uncertificated Uncertificated Certificate
Interest Interest
Class LF Class MF Class F
Uncertificated Uncertificated Certificate
Interest Interest
Class LG Class MG Class G
Uncertificated Uncertificated Certificate
Interest Interest
Class LH Class MH Class H
Uncertificated Uncertificated Certificate
Interest Interest
Class LJ Class MJ Class J
Uncertificated Uncertificated Certificate
Interest Interest
Class LK Class K
Uncertificated Certificate
Interest
Class LL Class L
Uncertificated Certificate
Interest
Class LM Class M
Uncertificated Certificate
Interest
Class LN Class N
Uncertificated Certificate
Interest
Class LO Class O
Uncertificated Certificate
Interest
Class LP Class P
Uncertificated Certificate
Interest
"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 Sellers or an Affiliate of
either.
"Cut-off Date": May 1, 2001.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"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 or Mortgaged Properties during the most
recently ended period of not more than twelve (12) months or less than three (3)
months for which financial statements (whether or not audited) have been
received by or on behalf of the Mortgage Loan Seller (prior to the Closing Date)
or the Master Servicer or the Special Servicer (following the 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. The Master Servicer may, in accordance
with CMSA reporting standards, report Net Cash Flow with respect to each
Mortgaged Property where one or more Mortgage Loans are secured by multiple
Mortgaged Properties; provided, however, that for purposes of determining Debt
Service Coverage Ratio compliance, calculations shall be made at the Mortgage
Loan level.
"Default Charges": Any late payment charges paid or payable, as the
context requires, in connection with a default under a Mortgage Loan or any
successor REO Loan, other than a Prepayment Premium, Yield Maintenance Charge or
Excess Interest.
"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 (exclusive, if applicable, of
Excess 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": As defined in Section 3.18.
"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, or (v) in foreclosure but as to which the related Mortgaged Property
had not become REO Property.
"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 such 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 Principal 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, the
performance of any construction work thereon or any use of such REO Property in
a trade or business conducted by REMIC I or the related Loan REMIC 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-IIU or Class R-III 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-IIU, or Class R-III 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 W-8ECI (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-IIU, or Class
R-III 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-IIU or Class R-III 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 and the Class A-2F Regular Interest, for any Distribution
Date, the Accrued Certificate Interest in respect of such Class of Regular
Certificates or Class A-2F Regular Interest 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, first, to the
Class, P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates, in that order,
in each case up to an amount equal to the lesser of any remaining unallocated
portion of such Net Aggregate Prepayment Interest Shortfall and any Accrued
Certificate Interest in respect of the particular Class of Regular Certificates
for such Distribution Date; and, thereafter, if and to the extent that any
portion of such Net Aggregate Prepayment Interest Shortfall remains unallocated,
pro rata among the Class A-1 Certificates, Class A-2 Certificates, Class A-2F
Regular Interest and Class X 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 2001-1,
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
July 2001.
"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.
"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 "A" by Fitch (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 "F-1" by Fitch (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 and subject to the regulations regarding fiduciary funds on
deposit therein under 12 C.F.R. ss.9.10(b), (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 American
International Specialties Lines Insurance Company in the form attached hereto as
Exhibit L and naming as insureds the Trustee and the Mortgage Loan Sellers.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class O, and Class P Certificate; provided, that any such
Certificate (a) will cease to be considered an ERISA Restricted Certificate and
(b) will cease to be subject to the transfer restrictions contained in Section
5.02(c) if, as of the date of a proposed transfer of such Certificate, either
(i) it is rated in one of the four highest generic ratings categories by a
Rating Agency or (ii) relevant provisions of ERISA would permit transfer of such
Certificate to a Plan.
"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).
"Excess Interest": All amounts received in respect of interest on an
ARD Loan applied in accordance with priorities second and fourth in the
definition of ARD Application Priority.
"Excess Interest Distribution Account": The segregated account or
accounts created and maintained by the Trustee pursuant to Section 4.06, which
shall be entitled "Wells Fargo Bank Minnesota, N.A., in trust for the registered
Holders of Banc of America Commercial Mortgage, Inc. Commercial Mortgage
Pass-Through Certificates, Series 2001-1, Excess Interest Distribution Account",
and which must be an Eligible Account. The Excess Interest Distribution Account
shall not be an asset of the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC
III formed hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bank of America Corporation
(successor in interest to NationsBank 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 a Mortgage Loan Seller or an Affiliate thereof
pursuant to Section 2.03, by a Defaulted Loan Purchaser pursuant to Section 3.18
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) 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.
"Fitch": Fitch, Inc., or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator, and specific ratings of Fitch, Inc. herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Fixed Interest Distribution": With respect to the Class A-2F
Regular Interest and any Distribution Date, the payments of interest required to
be made on such Distribution Date by the Trustee to the Swap Counterparty
pursuant to the Swap Documents at a fixed interest rate equal to the
Pass-Through Rate of the Class A-2F Regular Interest on the Floating Rate
Certificate Notional Amount.
"Floating Rate Account": The Eligible Account established and
maintained by the Trustee (or the Paying Agent on behalf of the Trustee)
pursuant to Section 3.04(g) with respect to the Class A-2F Certificates, 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 2001-1, Floating Rate Account, Class
A-2F"; provided, that the Floating Rate Account may be a subaccount of the
Distribution Account. The Floating Rate Account shall be an asset of the Grantor
Trust.
"Floating Rate Certificate Notional Amount": A notional amount equal
to the Certificate Principal Balance of the Class A-2F Regular Interest.
"Foreclosure": As defined in Section 3.18.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"GMACCM": GMAC Commercial Mortgage Corporation or its successor in
interest.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Loan REMIC Residual Interests, (ii) the Class A-2F Regular
Interest and the Swap Documents and all payments under the Class A-2F Regular
Interest and the Swap Documents, (iii) the Floating Rate Account and all funds
and assets from time to time on deposit in the Floating Rate Account and (iv)
the Excess Interest and amounts held from time to time in the Excess Interest
Distribution Account.
"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.
"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 Cut-off
Date, showing the original and the revised terms thereof.
"Historical Liquidation 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 (net of Liquidation Expenses) received 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
Sellers, 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 Sellers, 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 Sellers, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any Affiliate
thereof as an officer, employee, promoter, Placement Agents, 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
Sellers, 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 Sellers, 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 or the applicable Loan REMIC within the
meaning of Section 856(d)(3) of the Code if REMIC I or the applicable Loan REMIC
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
or the applicable Loan REMIC does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I or the
applicable Loan REMIC 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 Sequel
Closing Date equal to $948,131,109.
"Initial Class Principal Balance": As defined the Preliminary
Statement hereto.
"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 IIU Regular
Interests and each Class of Regular Certificates (other than the Class A-2F
Certificates) and for the Class A-2F Regular Interest for any Distribution Date,
the calendar month immediately preceding the month in which such Distribution
Date occurs. With respect to the Loan REMIC Regular Interests, the interest
accrual period of the related Mortgage Loan. With respect to the Class A-2F
Certificates and any Distribution Date, the period commencing on the
Distribution Date in the month immediately prior to the relevant Distribution
Date to but excluding the relevant Distribution Date.
"Interest Reserve Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 4.05 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 2001-1,
Interest Reserve Account".
"Interest Reset Date": The first day of each Interest Accrual Period
for the Class A-2F Certificates and, with respect to the first Interest Accrual
Period, the Sequel Closing Date.
"Interested Person": The Depositor, the Mortgage Loan Sellers, 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 and Default Interest.
"LIBOR": With respect to the Class A-2F Certificates and each
Interest Accrual Period, the per annum rate for deposits in U.S. dollars for a
period of one month, which appears on the Telerate Page 3750 as the "London
Interbank Offering Rate" as of 11:00 a.m., London time, on the day that is two
Business Days prior to that Interest Reset Date. If such rate does not appear on
said Telerate Page 3750, LIBOR shall be the arithmetic mean of the offered
quotations obtained by the Swap Counterparty from the principal London office of
four major banks in the London interbank market selected by the Swap
Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the day that is two Business Days
prior to that Interest Reset Date. If fewer than two Reference Banks provide the
Swap Counterparty with such quotations, LIBOR shall be the rate per annum which
the Swap Counterparty determines to be the arithmetic mean of the rates quoted
by major banks in New York City, New York selected by the Swap Counterparty at
approximately 11:00 a.m. New York City time on that Interest Reset Date for
loans in U.S. dollars to leading European banks for a period of one month in an
amount that is representative for a single transaction in the relevant market at
the relevant time.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by a Mortgage Loan Seller or any Affiliate thereof pursuant
to Section 2.03; or (iv) such Mortgage Loan is purchased by a Defaulted Loan
Purchaser 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 a 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 a Defaulted Loan
Purchaser or any other sale thereof pursuant to Section 3.18; (v) the repurchase
of a Mortgage Loan by a 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.
"Loan REMICs": Those twenty-one (21) REMICs constituted by the
Mortgage Loans listed on Schedule 53 to this Agreement, respectively.
"Loan REMIC Declarations": Those twenty-one REMIC Declarations, each
dated March 29, 2001 with respect to the Loan REMIC Loans.
"Loan REMIC Interests": Collectively, the Loan REMIC Residual
Interests and the Loan REMIC Regular Interests.
"Loan REMIC Loans": Each of the Mortgage Loans referenced under the
definition Loan REMIC.
"Loan REMIC Regular Interests": The uncertificated "regular
interests," within the meaning of Code Section 860G(a)(1), in the Loan REMICs
issued pursuant to the Loan REMIC Declarations. The principal balances of the
Loan REMIC Regular Interests shall equal the Stated Principal Balances of the
Loan REMIC Loans (or, if applicable, the deemed Stated Principal Balance of any
successor REO Loan) outstanding from time to time. Payments and other
collections of amounts received on or in respect of the Loan REMIC Loans (or any
related REO Property) and allocable (in accordance with Section 1.02) to
interest on, principal of and/or Prepayment Premiums or Yield Maintenance
Charges in respect of such Mortgage Loans (or any successor REO Loan) shall be
deemed paid on the Loan REMIC Regular Interests at the time such amounts are so
received. The terms of the Loan REMIC Regular Interests are otherwise set forth
in the Loan REMIC Declarations.
"Loan REMIC Residual Interests": The uncertificated "residual
interests," within the meaning of Code Section 860G(a)(2), in the Loan REMICs
issued pursuant to the Loan REMIC Declarations.
"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": GMAC Commercial Mortgage Corporation, 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 (including, without
limitation Excess 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), the Administrative Fee Rate specified for each such
Mortgage Loan on the Mortgage Loan Schedule less 0.32 basis points (.0032% per
annum).
"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 (or, in the case of an ARD Loan after its Anticipated Repayment Date,
the minimum required 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; provided that the Monthly Payment due in respect of
any ARD Loan after its Anticipated Repayment Date shall not include Excess
Interest.
"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 2001-1, 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 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 related 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 related 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, and the Master Servicer so notifies the
Depositor, then the Depositor shall have no duty to provide a copy of such
report to the Trustee and the Master Servicer shall provide such report to the
Trustee;
(xx) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xxi) any environmental policy; and
(xxii) with respect to the Loan REMIC Loans, originals or copies of
the Loan REMIC Declarations.
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 Schedule": The list of Mortgage Loans transferred on
the 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 and the control number, indicating whether the
Mortgage Loan is a Bank of America Mortgage Loan or a Bridger Mortgage Loan;
(ii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property.
(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");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date and, in the case of an ARD Loan, the Anticipated Repayment 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 Master Servicer
Fee Rate, the Trustee Fee Rate, the Primary Servicing Fee Rate and the Standby
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) the Standby Fee Rate;
(xiii) whether the Mortgagor's interest in the related Mortgaged
Property is a leasehold estate;
(xiv) 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;
(xv) the property type (e.g., multifamily);
(xvi) the property size (the square feet or units);
(xvii) the original amortization term;
(xviii) whether the Mortgage Loan is an ARD Loan; and
(xix) whether such Mortgage Loan is a Loan REMIC Loan.
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": Each of Bank of America and BCRF and each of
their respective 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 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.
"NB Conduit Originator": Each of Berkshire Mortgage Finance Bethesda
Limited Partnership and L.J. Melody & Company of Texas, L.P.
"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 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 Default Interest": With respect to any Mortgage Loan that
amount of Default Interest, if any, in excess of such amounts of Default
Interest allocated to reimburse the Master Servicer for Advances.
"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, Loan REMIC
Regular Interest 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 Regular Certificates from time to time, the Net Mortgage Rate for
any Mortgage Loan (or the Loan REMIC Regular Interests in the case of the Loan
REMIC Loans) will be calculated without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan subsequent to the Closing Date and
provided further, however, that if any Mortgage Loan does not accrue interest on
the basis of a 360-day year consisting of twelve 30-day months, which is the
basis on which interest accrues in respect of the REMIC Regular Certificates
(other than the Class A-2F Certificates) and the Class A-2F Regular Interest,
then the Net Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such loan on the basis of a 360-day year consisting
of twelve 30-day months in order to produce the aggregate amount of interest
actually accrued in respect of such loan during such one-month period at the
related Mortgage Rate (net of the related Administrative Fee Rate); provided
however, that with respect to such Mortgage Loans, the Mortgage Rate for the one
month period (a) prior to the due dates in January and February in any year
which is not a leap year or in February in any year which is a leap year will be
the per annum rate stated in the related Mortgage Note and (b) prior to the due
date in March will be determined inclusive of one day of interest retained for
the one month period prior to the due dates in January and February in any year
which is not a leap year or February in any year which is a leap year.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property, minus the total
fixed and variable operating expenses incurred in respect of such Mortgaged
Property (subject to adjustments for, and excluding, among other things, (i)
non-cash items such as depreciation and amortization, (ii) capital expenditures
(inclusive of replacement reserves) and (iii) debt service on loans secured by
the Mortgaged Property).
"Net Swap Payment": As defined in Section 3.28(d).
"Net Present Value" means an amount determined with respect to a
Defaulted Mortgage Loan and an Asset Disposition Method by the Special Servicer,
in consultation with the Operating Adviser, by (i) determining the cash flow
stream expected to be generated by a particular Asset Disposition Method with
respect to a Defaulted Mortgage Loan, (ii) subtracting the amount of expenses
expected to be incurred by the Trust in pursuing such Asset Disposition Method
and (iii) discounting such remainder at a rate equal to the Net Mortgage Rate of
such Defaulted Mortgage Loan. In determining cash flow stream expected from any
Asset Disposition Method, the Special Servicer shall refer to all relevant
information contained in the Appraisal with respect to the related Mortgaged
Property or Mortgaged Properties. In addition, the Special Servicer shall
consider objective third-party information obtained from generally available
sources as well as information obtained from vendors providing real estate
services to the Special Servicer concerning the market for distressed real
estate loans and the real estate markets for the related property types in
regions in which the Mortgaged Properties are located.
"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.
"NOI Adjustment Worksheet": A report prepared by the Master Servicer
(based upon operating statements, rent rolls, written reports and data fields
collected or prepared by the Special Servicer pursuant to Section 3.12(b) and
furnished to the Master Servicer by the Special Servicer in the case of
Specially Serviced Mortgage Loans) substantially containing the content
described in Exhibit K attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit K to "normalize" the
full year end of annual Net Operating Income and debt service coverage ratio
numbers used in the other reports required by this Agreement, sent, upon
request, to the Trustee with a hard copy (or imaged copies) of each annual
operating statement and related rent roll, if available, for a Mortgaged
Property or REO Property pursuant to Section 4.02(b).
"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 Interest, 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 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 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 a Mortgage Loan Seller, as the case may be.
"Operating Statement Analysis Report": As described in 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 Sellers, the
Trustee, the REMIC Administrator, the Master Servicer or the Special Servicer),
which written opinion is acceptable and delivered to the addressee(s).
"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) $158,654,096
Class A-2(1) $581,340,057
Class B $35,576,642
Class C $21,345,985
Class D $18,974,209
Class E $9,487,105
Class F $9,487,105
Class G $18,974,209
Class H $14,230,657
Class J $13,281,946
Class K $23,480,584
Class L $2,134,598
Class M $5,538,842
Class N $6,788,329
Class O $5,883,218
Class P $23,532,872
- ---------------------------------
(1) Redesignated without regard to the sequence listed above as Class A-1,
Class A-2 and Class A-2F.
"Original Closing Date": May 30, 2001.
"Original Cut-off Date": May 1, 2001.
"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 and the Class A-2F Regular Interest, 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.
"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, and Class J Certificates
tenth, the Class K Certificates, eleventh, the Class L Certificates, twelfth,
the Class M Certificates, thirteenth, the Class N Certificates, fourteenth, the
Class O Certificates, fifteenth, the Class P 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 K, Class L, Class M, Class N,
Class O and Class P Certificates) or the Sequel Closing Date (in the case of the
Class A-1, Class A-2, Class A-2F, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J 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 or a Class V 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(c)(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 Fitch;
(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 Fitch;
(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 "F1+" by Fitch;
(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
Fitch 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
described hereunder shall have a maturity in excess of one (1) year; and
provided, further, that no investment described hereunder shall be liquidated
prior to its maturity date.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than any of a Plan, a Disqualified Organization or a Disqualified Non-U.S.
Person or any nominee, agent or middleman of any of the above.
"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.
"Placement Agent": Banc of America Securities LLC.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan (other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its Anticipated
Repayment Date, such assumption to be used for determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests and the Certificates for federal income tax
purposes.
"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 such Mortgage Loan's Due
Date, any payment of interest (net of related Master Servicing Fees and
exclusive of Prepayment Premiums and, in the case of an ARD Loan after its
Anticipated Repayment Date, Excess Interest) actually collected from the related
Mortgagor from and after such Due Date. A Prepayment Interest Excess in respect
of a Loan REMIC Loan shall be a Prepayment Interest Excess in respect of the
related Loan REMIC Regular Interest.
"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 (determined without regard to any Prepayment Premium that
may have been collected and exclusive of, in the case of an ARD Loan after its
Anticipated Repayment Date, Excess 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. A Prepayment
Interest Shortfall in respect of the Loan REMIC Loans shall be a Prepayment
Interest Shortfall in respect of the related Loan REMIC Regular Interest.
"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.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the 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 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 Pennsylvania and, with respect to the
Special Servicer, the office thereof primarily responsible for performing its
respective duties under this Agreement, initially located in Florida.
"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
June 12, 2001 relating to the Class A, Class X, Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificates, that is a supplement to the Base
Prospectus.
"PSCC": Prudential Securities Credit Corp., LLC, a Delaware limited
liability company.
"Purchase Price": With respect to any Mortgage Loan (and the related
Loan REMIC Interests), 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 (excluding, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess 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 (excluding, in the
case of an ARD Loan after its Anticipated Repayment Date, Excess 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, Loan REMIC Interests 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 Fitch.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in April 15, 2036.
"Rating Agency Trigger Event": The reduction of the Swap
Counterparty's long-term and short-term senior unsecured deposit ratings below
"Aa3" and "P-1", respectively, by Moody's, or "AA-" and "F-1", respectively, by
Fitch.
"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 related to the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest (excluding, in the case of
an ARD Loan after its Anticipated Repayment Date, Excess 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 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 Collection 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.
A Realized Loss with respect to a Loan REMIC Loan shall be a
Realized Loss with respect to the related Loan REMIC Regular Interest.
"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-1, Class A-2, Class A-2F,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class K,
Class L, Class M, Class N, Class O and Class P 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 (other than the Loan REMIC Loans) as from
time to time are subject to this Agreement and all payments under and proceeds
of such Mortgage Loans (exclusive of Excess Interest) received or receivable
after the Cut-off Date (other than payments of principal, interest and other
amounts due and payable on the Mortgage Loans on or before the 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 Sellers; (ii) any REO Property acquired in respect of a Mortgage
Loan (other than a Loan REMIC 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). The
Loan REMIC Loans (exclusive of Excess Interest, if any), collections thereon and
any related REO Property acquired in respect thereof shall be held as assets of
the related Loan REMICs, and the related Loan REMIC Regular Interests and
collections thereon shall be held as assets of REMIC I.
"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 LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ,
Class LK, Class LL, Class LM, Class LN, Class LO and Class LP 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 trust account or accounts 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 2001-1, REMIC II
Distribution Account" and which account shall be an Eligible Account.
"REMIC II Regular Interests": On and after the Sequel Closing Date,
the REMIC II Uncertificated Regular Interests and the Unaffected 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 MB, Class MC, Class MD, Class ME, Class MF, Class MG, Class
MH, Class MJ and Class MX Uncertificated Interests.
"REMIC IIU": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class MA-1 and Class MA-2
Uncertificated Interests and amounts distributed thereon as from time to time
are held in the REMIC IIU Distribution Account.
"REMIC IIU 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, N.A., as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-1, REMIC IIU Distribution Account," and which account
shall be an Eligible Account.
"REMIC IIU Distribution Amount": As defined in Section 4.01(a)(i).
"REMIC IIU Regular Interests": Any of the Class UA-1, Class UA-2 and
Class UA-2F Regular Interests.
"REMIC IIU Remittance Rate": With respect to any REMIC IIU Regular
Interest, the Weighted Average Adjusted Net Mortgage Rate.
"REMIC III": A segregated pool of assets subject hereto and to be
administered hereunder and consisting of the Class UA-1, Class UA-2, Class
UA-2F, Class MB, Class MC, Class MD, Class ME, Class MF, Class MG, Class MH,
Class MJ 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": Any of the Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class X and Class
R-III Certificates.
"REMIC III 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 2001-1, REMIC III Distribution Account," and which account
shall be an Eligible Account.
"REMIC III Regular Certificates": Any of the REMIC III Certificates
other than the Class R-III Certificates.
"REMIC III Uncertificated Regular Interest": The Class A-2F Regular
Interest.
"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 "Lennar
Partners, Inc., as Special Servicer, in trust for registered holders of Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2001-1, 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.
"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 and/or the Trustee in respect of such Advances, shall
continue to be payable or reimbursable to the Master 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, and (ii) 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 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 ("A" or
better), Standard & Poors Ratings Services a division of The McGraw Hill
Companies, Inc. ("A" or better) and A.M. Best ("A:VIII" or better) or any
insurance carrier backed or guaranteed by an insurer with such a rating;
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 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, unless, with respect to policies maintained
by Borrowers, a higher claims-paying ability rating is required under any of the
Mortgage Loan documents.
"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-IIU or
Class R-III 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.
"Responsible Party": With respect to any Document Defect or alleged
Document Defect or any breach or alleged breach of a representation or warranty
set forth in Section 2.05(d), either: (i) Bank of America, if such Document
Defect or alleged Document Defect relates to a Bank of America Mortgage Loan, or
if such breach or alleged breach is of a representation or warranty as to which
Bank of America is the Responsible Party; or (ii) BCRF, if such Document Defect
or alleged Document Defect relates to a Bridger Mortgage Loan, or if such breach
or alleged breach is of a representation or warranty as to which BCRF is the
Responsible Party.
"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-1, Class A-2, Class A-2F or Class
X Certificate.
"Senior Interest": Any Class A-1, Class A-2 or Class X Certificate
and the Class A-2F Regular Interest.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1 Certificates, and Class A-2 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 Class A-1 Certificates, and Class A-2 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 J, Class K, Class L, Class M, Class
N, Class O or Class P Certificate.
"Sequel Closing Date": June 27, 2001.
"Servicer Reports": As defined in Section 4.02 (a).
"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": Subject to Section 3.19(d), 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, with respect to
the Specially Serviced Mortgage Loans, by the Master Servicer at the direction
of 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 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, 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 Master Servicer at the direction
of 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 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": 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 of and for the benefit of the Certificateholders (as determined
by the Master Servicer or the Special Servicer, as applicable in its good faith
and reasonable judgement), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and to the extent
consistent with the forgoing, further as follows, (i) with the same skill, care
and diligence as is normal and usual in its general mortgage servicing
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans that are comparable to the Mortgage
Loans; (ii) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans or, if a Mortgage Loan comes
into and continues in default, with a view to maximization of the recovery on
such Mortgage Loans on a Net Present Value basis; and (iii) without regard to
(A) any relationship that the Master Servicer or the Special Servicer, as
applicable or any Affiliate thereof may have with the related Mortgagor, (B) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
applicable, or by any Affiliate thereof, (C) the Master Servicer's or the
Special Servicer's, as applicable, obligation to make Advances, and (D) the
right of the Master Servicer (or any Affiliate thereof) to receive reimbursement
of costs, or the sufficiency of any compensation payable to it, hereunder or
with respect to any particular transaction (the conditions set forth in the
immediately foregoing clauses (i), (ii) and (iii), the "Servicing Standard").
"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": Lennar Partners, Inc., 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 Servicer Reports listed in
Section 4.02(a)) 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, 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, and the Mortgagor has not delivered to the Master Servicer, on or prior
to the due date of such Balloon Payment, a written refinancing commitment from
an acceptable lender and reasonably satisfactory in form and substance to the
Master Servicer which provides that 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
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
a Balloon Payment) or any other payment required under the related Mortgage Note
or the related Mortgage(s) is likely to occur and would not be cured within 60
days or in the case of a Balloon Payment would not be cured for at least 30
days; 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, 0.00075% per annum.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c). With respect to the Loan REMICs, March
29, 2001.
"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 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 and, in the case of an ARD Loan,
without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), a principal amount initially equal to the 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.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class V 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.
"Swap Contract": The ISDA Master Agreement and Schedule to the
Master Agreement, dated as of June 27, 2001, by and between the Swap
Counterparty and the Trustee, solely in its capacity as Trustee of the Trust
Fund.
"Swap Counterparty": Bank of America, N.A., a national banking
association, acting in such capacity or its successor in interest.
"Swap Default": Any failure on the part of the Swap Counterparty to
(i) make a required payment under the Swap Documents or (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty after
a Rating Agency Trigger Event has occurred (as required by Part 1, paragraph (k)
of the Schedule to the related ISDA Master Agreement) and after the expiration
of the applicable time periods in which to take such action(s) (as set forth in
the Schedule).
"Swap Documents": The Swap Contract and the related Confirmation for
U.S. Dollar Interest Rate Swap Transaction dated June 27, 2001.
"Tax Matters Person": With respect to each of the Loan REMICs, REMIC
I, REMIC II, REMIC IIU, and REMIC III, 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU, and REMIC III
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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III 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).
"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 IIU, REMIC III, the Loan REMICs and the Grantor Trust.
"Trustee": Wells Fargo Bank Minnesota, N. A., 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, and without giving
effect to any Excess Interest that may accrue on the ARD Loan after its
Anticipated Repayment Date.
"Trustee Fee Rate": A rate of .0032% per annum.
"Trustee's Website": The website maintained by the Trustee and
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.
"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 any REMIC IIU
Regular Interest, for any Distribution Date, one month's interest at the REMIC
IIU Remittance Rate applicable to such REMIC IIU Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
IIU 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 or REMIC IIU 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 K, Class L, Class
M, Class N, Class O and Class P 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 any REMIC IIU Regular Interest, the Uncertificated Accrued
Interest in respect of such REMIC IIU 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, Class MD, Class ME, Class MF,
Class MG, Class MH, Class MJ and Class MX Uncertificated Interests pursuant to
the preceding sentence, and to the Class K, Class L, Class M, Class N, Class O
and Class P 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 IIU Regular Interest
for such Distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC IIU 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, 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. With respect to any Class of REMIC II
Uncertificated Regular Interests, (i) after the Sequel Closing Date and on or
prior to the first Distribution Date following the Sequel Closing 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
first Distribution Date following the Sequel Closing Date, (a) other than in the
case of the Class MA-1 and Class MA-2 Uncertificated Interests, 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, (b) in the
case of the Class MA-1 Uncertificated Interest, an amount equal to the excess of
(A) the sum of the Class Principal Balances of the Class A-1 and Class A-2
Certificates and Class A-2F Regular Interest on the Distribution Date
immediately prior to such date of determination over (B) the initial principal
amount of the Class MA-2 Uncertificated Interest, but not less than zero, and
(c) in the case of the Class MA-2 Uncertificated Interest, an amount equal to
the excess of (A) the sum of the Class Principal Balances of the Class A-1 and
Class A-2 Certificates and Class A-2F Regular Interest over (B) the
Uncertificated Principal Balance of the Class MA-1 Uncertificated Interest, in
each case on the Distribution Date immediately prior to such date of
determination. With respect to any Class of REMIC IIU Regular Interests, (i)
after the Sequel Closing Date and on or prior to the first Distribution Date
following the Sequel Closing 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 first Distribution Date following the
Sequel Closing 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.
"Underwriter": Each of Banc of America Securities LLC and Salomon
Smith Barney Inc.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the applicable
Treasury regulations) 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, 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 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, 95% 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 5% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates.
None of the Class V Certificates, the Class R-I Certificates nor the Class R-II
Certificates will be entitled to any Voting Rights. 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; provided, however, that
in the case of the Loan REMIC Loans, "Mortgage Loan" shall refer to the related
Loan REMIC Regular Interest for purposes of this definition.
"Withheld Amounts": As defined in Section 4.05.
"Workout": As defined in Section 3.18.
"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%.
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 Advances and interest thereon and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of accrued and unpaid interest
(excluding, in the case of an ARD Loan after its Anticipated Repayment Date,
Excess 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 Interest then due and
owing under such Mortgage Loan, eighth, as a recovery of any Default Charges
then due and owing under such Mortgage Loan; ninth, as a recovery of any
assumption fees and modification fees then due and owing under such Mortgage
Loan; tenth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal; eleventh, as an early
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and, twelfth, in the case of an ARD
Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Excess Interest on such ARD Loan, to but not including the date of receipt. 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
Advances; second, as a recovery of accrued and unpaid interest (excluding, in
the case of an REO Loan that relates to an ARD Loan after its Anticipated
Repayment Date, Excess 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; fifth, as a recovery of any other
amounts (including, without limitation, first a recovery of Default Interest and
then a recovery of Default Charges) deemed to be due and owing in respect of the
related REO Loan; and, sixth, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Excess Interest on such REO Loan to but not including the date of receipt.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest.
(d) 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.
(e) 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 and Loan REMIC Interests.
(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 Depositor and, at the direction of the Depositor
given pursuant to each of the Bank of America/BACM Mortgage Loan Purchase and
Sale Agreement and the BCRF/BACM Mortgage Loan Purchase and Sale Agreement, each
Mortgage Loan Seller, concurrently with respective execution and delivery
hereof, does hereby assign, transfer, sell and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders and the Trustee as
holder of REMIC I Regular Interests, the REMIC II Uncertificated Regular
Interests, the REMIC IIU Regular Interests, the REMIC III Uncertificated Regular
Interest and the Loan REMIC Interests all the right, title and interest of the
Depositor, and the Mortgage Loan Sellers, respectively, in, to and under the
Mortgage Loans identified on the Mortgage Loan Schedule, the Loan REMIC
Interests 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 Sellers; (ii) any REO Property acquired in respect of a Mortgage
Loan; (iii) the Loan REMIC Interests, and (iv) 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 IIU Distribution Account, the REMIC III
Distribution Account, the Floating Rate Account, the Interest Reserve Account,
the Excess Interest Distribution Account and the REO Account (if established).
It is intended that the conveyance of the Mortgage Loans, the Loan
REMIC Interests and the related rights and property by the Depositor, and the
Mortgage Loan Sellers to the Trustee, as provided in this Section be, and be
construed as, an absolute transfer of the Mortgage Loans and the Loan REMIC
Interests 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 and the Loan REMIC Interests to the Trustee to secure a debt or other
obligation of the Depositor, or the Mortgage Loan Sellers, as the case may be.
However, in the event that the Mortgage Loans or the Loan REMIC Interests are
held to be property of the Depositor, or the Mortgage Loan Sellers, 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 Depositor, and the Mortgage Loan Sellers and the
Loan REMIC Interests 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, (C) the Loan REMIC Interests and (D) 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 IIU Distribution Account, the REMIC III
Distribution Account, the Floating Rate Distribution Account, the Interest
Reserve Account, the Excess Interest Distribution 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 Mortgage Loan Sellers 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 and/or the Loan REMIC Interests, 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, or, with respect to Mortgage Loans subject to
a Sub-Servicing Agreement, the Sub-Servicer, shall (at its or its Sub-Servicer's
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 on its behalf; provided, however, that this shall
in no way limit the Depositor's liability for such deficiencies or impose any
liability whatsoever on either the Master Servicer or the Special Servicer.
(c) In connection with the assignment pursuant to subsection (b)
above, the Mortgage Loan Sellers (at the direction of the Depositor pursuant to
the Bank of America/BACM Mortgage Loan Purchase and Sale Agreement or the
BCRF/BACM 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 related Mortgage Loan Seller hereunder. If a 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 a 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 such 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 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 such
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 a 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 such
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 such 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 a 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 such 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 such 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 either 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) Bank of America shall, as to each Bank of America Mortgage Loan,
and BCRF shall, as to each Bridger Mortgage Loan, in each such case, at its own
expense, promptly (and in any event within 45 days of the 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". 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,
Bank of America, in the case of the Bank of America Mortgage Loans, and BCRF, in
the case of the Bridger Mortgage Loans, shall in each such case 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 Bank of America, in the case of
Bank of America Mortgage Loans, and BCRF, in the case of the Bridger Mortgage
Loans, shall in each such case, 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 either 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 either Mortgage Loan Seller (or, in either
case, under its control) with respect to the Mortgage Loans, shall be delivered
or caused to be delivered by the appropriate 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) Bank of America shall, as to each Bank of America Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
and BCRF shall, as to each Bridger Mortgage Loan which is secured by the
interest of the related Mortgagor under a Ground Lease, in each case at its own
expense, promptly (and in any event within 45 days of the 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, and shall provide copies of such notices to the Master Servicer.
(g) In connection with its assignment of the Bank of America
Mortgage Loans hereunder, Bank of America hereby expressly assigns to the
Trustee for the benefit of the Certificateholders any and all rights Bank of
America may have with respect to representations and warranties made by a third
party originator and/or an NB Conduit Originator with respect to any Mortgage
Loan under the mortgage loan purchase agreement between Bank of America and such
third party originator and/or the NB Conduit Originator that originated such
Mortgage Loan pursuant to which Bank of America originally acquired such
Mortgage Loan from such NB Conduit Originator and/or third party originator. In
the event such Mortgage Loan is repurchased by Bank of America, the Trustee
shall re-assign such rights under the relevant mortgage loan purchase agreement
to Bank of America 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 of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, of, with respect to each Mortgage Loan, an original Mortgage
Note endorsed to the Trustee 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 Sellers in respect of the Mortgage Loans and the Loan REMIC
Interests, and that it holds and will hold all other assets included in the Loan
REMICs, and REMIC I and the Grantor Trust (in respect of Excess Interest and the
Loan REMIC Residual Interests) in trust for the exclusive use and benefit of all
present and future Certificateholders and the Trustee as holder of the REMIC I
Regular Interests, REMIC II Uncertificated Regular Interests, REMIC IIU Regular
Interests, REMIC III Uncertificated Regular Interest and the Loan REMIC
Interests.
(b) Within 60 days of the Original Closing Date (or, in the case of
any Mortgage Loan as to which a Servicing Transfer Event has occurred during
such 60-day period of which event the Trustee has notice, within the shorter of
60 days of the Original Closing Date and five Business Days of the Trustee's
receiving such notice), the Trustee or a Custodian on its behalf shall review
each of the documents delivered or caused to be delivered by the Mortgage Loan
Sellers 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
with respect to a title policy or the date of funding with respect to a title
commitment) 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 each 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 related 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 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 Sellers 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 with respect to a title policy
or the date of funding with respect to a title commitment) 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 each
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 Sellers 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 (xxi) of the definition of "Mortgage File" exist or are required to be
delivered by the Mortgage Loan Sellers 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 Sellers 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, Bank of America, if a Bank of America
Mortgage Loan is affected, or BCRF if a Bridger Mortgage Loan is affected shall
promptly, 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 Sellers' Repurchase of Mortgage Loans for
Document Defects and Certain Breaches of Representations and Warranties.
(a) Within 90 days of the earlier of (i) discovery by any
Responsible Party, or (ii) receipt of written notice by any Responsible Party
from any party to this Agreement of its discovery of, a Document Defect in
respect of any Mortgage Loan or a breach of any representation or warranty set
forth in Section 2.05(d) in respect of any Mortgage Loan, which Document Defect
or breach, as the case may be, materially and adversely affects the value of
such Mortgage Loan or the interests of the Certificateholders therein, the
Responsible Party shall cure such Document Defect or breach, as the case may be,
in all material respects or repurchase (or if the Responsible Party is Bank of
America, cause an Affiliate to purchase) the affected Mortgage Loan (together
with the related Loan REMIC Interests, if applicable) 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;
(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 Trustee 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
Trustee prompt notice, whereupon the Trustee shall notify the Responsible Party
to cure such Document Defect, or, failing that, repurchase the related Mortgage
Loan, all in accordance with the procedures set forth herein. Notwithstanding
the preceding sentence, solely in the event that BCRF as the Responsible Party
for the Bridger Mortgage Loans fails to cure such Document Defect or breach of
representation and warranty pursuant to Section 2.05(c), PSCC will be jointly
and severally liable with such Responsible Party to repurchase such Mortgage
Loan at the applicable Purchase Price. 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 Responsible Party 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 Responsible Party 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 Responsible
Party 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
Responsible Party that there is a Document Defect or other breach of the
representations and warranties 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 Responsible Party 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. In connection with a repurchase
of a Loan REMIC Loan, as contemplated by this Section 2.03(a), the REMIC
Administrator shall effect a "qualified liquidation" of the related Loan REMIC
in accordance with the REMIC Provisions.
(b) In connection with any repurchase of a Mortgage Loan (and the
related Loan REMIC Interests, if applicable) 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 Responsible Party, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a receipt executed by
the Responsible Party, 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 Responsible Party,
in the same manner. The form, sufficiency and expense of all such instruments
and certificates shall be the responsibility of the Responsible Party.
(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(c) hereof. If the Responsible Party 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 Responsible Party is
required to repurchase such Mortgage Loan under Section 2.03(a) hereof, the
Responsible Party 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.
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 and the 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 Bank of America and BCRF made pursuant to Section 2.05(c)(i) hereof as
of the Original Closing Date, immediately prior to the transfer of the
Mortgage Loans by the Depositor to the Trustee hereunder, 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.
In the case of the Loan REMIC Loans, such representations, warranties and
covenants shall also apply to the Loan REMIC Regular Interests.
(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
Sellers.
(a) Bank of America hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders, as of the Original
Closing Date and the Sequel Closing Date unless otherwise state below, that:
(i) Bank of America is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States.
(ii) The execution and delivery of this Agreement by Bank of
America, and the performance and compliance with the terms of this
Agreement by Bank of America, will not violate Bank of America
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) Bank of America 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 Bank of America enforceable against Bank of
America 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) Bank of America 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 Bank of America's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of Bank of America to perform its obligations under this Agreement or the
financial condition of Bank of America.
(vi) No litigation is pending or, to the best of Bank of
America's knowledge, threatened against Bank of America would prohibit
Bank of America from entering into this Agreement or, in Bank of America
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of Bank of America to perform its obligations
under this Agreement or the financial condition of Bank of America.
(vii) The Sub-Servicing Agreement in place as of the Original
Closing Date among the Master Servicer, Collateral Mortgage Capital LLC,
Bank of America, N.A., L.J. Melody & Company of Texas, LP and Berkshire
Mortgage Finance Bethesda Limited Partnership complies with the
requirements of this Agreement.
(viii) Bank of America 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.
In the case of each Loan REMIC Loan such representations and warranties and
covenants shall also apply to the Loan REMIC Regular Interests.
(b) BCRF hereby represents and warrants to the other parties hereto
and for the benefit of the Certificateholders, as of the Original Closing Date,
that:
(i) BCRF is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of Missouri.
(ii) The execution and delivery of this Agreement by BCRF, and
the performance and compliance with the terms of this Agreement by BCRF,
will not violate BCRF'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) BCRF 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 BCRF, enforceable against BCRF 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) BCRF 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 BCRF's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of BCRF to perform its
obligations under this Agreement or the financial condition of BCRF.
(vi) No litigation is pending or, to the best of BCRF's
knowledge, threatened against BCRF which would prohibit BCRF from entering
into this Agreement or, in BCRF's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of BCRF to
perform its obligations under this Agreement or the financial condition of
BCRF.
Bank of America Mortgage Loan and Bridger Mortgage Loan
Representations
(c) Bank of America hereby represents and warrants (and,
accordingly, is the "Responsible Party" with respect to each such representation
or warranty so made) with respect to (but solely with respect to) each Bank of
America Mortgage Loan and 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, and BCRF
hereby represents and warrants (and, accordingly, is the "Responsible Party"
with respect to each such representation or warranty so made) with respect to
(but solely with respect to) each Bridger Mortgage Loan and to the other parties
hereto and for the benefit of Certificateholders, as of the date specified in
such representation and warranty or, if no such date is specified as of the
Closing Date that:
(i) Immediately prior to the transfer thereof by Bank of America
to BACM, in the case of a Bank of America Mortgage Loan, or the transfer
thereof by BCRF to BACM, in the case of a Bridger Mortgage Loan, each of
Bank of America or BCRF, as the case may be, had good and marketable title
to, and was the sole owner and holder of, its respective Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests on,
in or to such Mortgage Loan.
(ii) Bank of America had full right and authority to sell, assign
and transfer such Mortgage Loan to BACM, and BCRF had the full right and
authority to sell, assign and transfer such Bridger Mortgage Loan to BACM.
(iii) The information pertaining to such Mortgage Loan set forth
in the Mortgage Loan Schedule was true 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 Responsible Party.
(v) Except as described in Schedule 5, 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 affect the value of the Mortgaged Property, 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) Except as described in Schedule 6, 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, 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 Responsible Party and its
successors and 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 Responsible
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 policy is assignable
to the Trustee without the consent of, or notification to, the insurer.
(vii) Neither Responsible Party 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) Neither Responsible Party has actual knowledge that there is
any proceeding pending or threatened for the total or partial condemnation
of the related Mortgaged Property, and 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
applicable Responsible 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, and, in its
assignment of rents provision, permits the appointment of a receiver to
collect such rents.
(xiii) Except as described in Schedule 13, as of the date of its
origination, all insurance coverage required under each related Mortgage,
which insurance covered such risks as were customarily acceptable to
prudent commercial and multifamily mortgage lending institutions lending
on the security of property comparable to the related Mortgaged Property
in the jurisdiction in which such Mortgaged Property is located, and with
respect to a fire and extended perils insurance policy, is in an amount
(subject to a customary deductible) equal to the lesser of (i) the
replacement cost of improvements located on such Mortgaged Property, or
(ii) the initial principal balance of the Mortgage Loan, and in any event,
the amount necessary to prevent operation of any co-insurance provisions;
and, except if such Mortgaged Property is operated as a mobile home park,
is also covered by business interruption or rental loss insurance, in an
amount at least equal to 12 months of operations (or in the case of a
Mortgaged Property without any elevator, 6 months) of the related
Mortgaged Property all of which is in full force and effect with respect
to each related Mortgaged Property; and, as of the Original Cut-off Date,
to the actual knowledge of the Seller, all insurance coverage required
under each Mortgage, which insurance covers such risks and is in such
amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, is in full force and effect
with respect to each related Mortgaged Property; all premiums due and
payable through the Original Closing Date have been paid; and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Seller; and except for certain amounts not greater
than amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar Mortgage Loan and
which are set forth in the related Mortgage, any insurance proceeds in
respect of a casualty loss, will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property with the
mortgagee having the right to hold and disburse the proceeds or (ii) the
reduction of the outstanding principal balance of the Mortgage Loan at the
holder's sole option, subject in either case to requirements with respect
to leases at the related Mortgaged Property and to other exceptions
customarily provided for by prudent institutional lenders for similar
loans. The Mortgaged Property is also covered by comprehensive general
liability insurance against claims for personal and bodily injury, death
or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders.
The insurance policies contain a standard mortgage clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 10 days prior written notice to the mortgagee or such lesser
period as prescribed by applicable law. Each Mortgage requires that the
mortgagor maintain insurance as described above or permits the mortgagee
to require insurance as described above, and permits the mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails to
do so or provide that the mortgagee has the general right to cure defaults
of the Mortgagor.
(xiv) Except as described in Schedule 14, 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;
provided that Mortgage Loans having a principal balance of $2,000,000 or
less as of the Original Cut-off Date may have had a transaction screen
performed with respect to the related Mortgaged Property in lieu of a
Phase I Environmental Assessment. The Responsible 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 related Responsible 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) Except as described in Schedule 16, 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 related Responsible Party, at origination of such
Mortgage Loan, there were no delinquent water charges or sewer rents)
affecting the related Mortgaged Property.
(xviii) Except as described in Schedule 18, 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 related Responsible Party or its agents (which
shall include the Master Servicer), and all the Depositor's and the
related Responsible 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 described in Schedule 23, 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 (except Mortgaged Properties for which the
use or Improvements are legally non-conforming), 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,
and any subsequent holder(s) of such Mortgage Loan, were 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
related Responsible 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 Responsible Party with respect to the Mortgage
Loans in this Section 2.05(c).
(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, other than the ARD Loans, provide for the negative
amortization of interest.
(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) Except as described in Schedule 29, to the related
Responsible 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 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 related Responsible 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 related Responsible Party or, to the knowledge of
the related Responsible Party, any originator, in connection with the
origination of such Mortgage Loan.
(xxxiv) [Reserved].
(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); provided, however, that, at the related Bank of America
Sub-Servicer's option, although its Sub-Servicing duties shall terminate
to the extent transferred to the Special Servicer, the related Bank of
America Sub-Servicer may retain the Mortgage Loans on its computer systems
so long as such Mortgage Loans are Specially Serviced Mortgage Loans
(without any compensation therefor), provided, however, that the related
Bank of America Sub-Servicer will be entitled to the fees to which it
would otherwise have been entitled during the period that such Specially
Serviced Mortgage Loan remains boarded on such Bank of America
Sub-Servicer's computer system, if the Bank of America Sub-Servicer was
performing servicing functions at the request of the Special Servicer
during such period. Any such Mortgage Loan retained on the computer system
of a Sub-Servicer shall be subject to the rights of the Special Servicer
while such Mortgage Loan is a Specially Serviced Mortgage Loan.
(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 the 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 related Responsible
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) Except as described on Schedule 39, 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) The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor except
that the related Mortgagor accepts responsibility for fraud and/or other
intentional misrepresentation. Furthermore, the Mortgage Loan documents
for each Mortgage Loan provide that the related Mortgagor shall be liable
to the lender for losses incurred due to the misapplication or
misappropriation of rents collected or received by the related Mortgagor
after the occurrence of an event of default, insurance proceeds or
condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
(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 related Responsible 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) With respect to at least 95% of the Mortgage Loans (by
balance) having an Original Cut-Off Date Balance in excess of 1% of the
Initial Pool Balance, the related Mortgagor is an entity which has
represented in connection with the origination of the Mortgage Loan,
and/or whose organizational documents provide, that so long as the
Mortgage Loan is outstanding it will be a single-purpose entity. (For this
purpose, "single-purpose entity" shall mean a person, other than an
individual, which does not engage in any business unrelated to the related
Mortgaged Property and its financing, does not have any significant assets
other than those related to its interest in such Mortgaged Property or its
financing, or any indebtedness other than as permitted by the related
Mortgage or the other documents in the Mortgage Loan File, and holds
itself out as being a legal entity, separate and apart from any other
person).
(xliv) 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 (iii) of this Section
2.05(c).
(xlv) Except as described in Schedule 45, 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 neither Responsible Party has actual
knowledge that the Mortgaged Property secures any Mortgage Loan outside
the Trust.
(xlvi) [Reserved].
(xlvii) [Reserved].
(xlviii) Except as described in Schedule 48, 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 Responsible Party represents and warrants
that:
(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.
The Ground Lease is, and provides that it shall remain, prior
to any Mortgage or other lien upon the related fee interest;
(C) Under the terms of the Ground Lease and/or the related
Mortgage, any related insurance proceeds or condemnation award
will be applied, in the sole discretion of the holder of the
related Mortgage, 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, upon the foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof) or otherwise, 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) To the Responsible Party's knowledge, as of the Closing Date,
the Ground Lease was is in full force and effect and no
default has occurred under the Ground Lease and, as of the
Original Closing Date, to the related Responsible 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) 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) All rights of the related Mortgagor under such Ground Lease
(and the related Mortgage insofar as it relates to the Ground
Lease) may be exercised by or on behalf of the related
mortgagee;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by an institutional investor. 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) 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 a reasonable time to cure any default or breach
by the lessee thereunder, including such time as is necessary
to gain possession of the Mortgaged Property, by foreclosure
or otherwise, if possession is necessary to effect such cure;
and
(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 20 years beyond the
stated maturity of the related Mortgage Loan; or, if not 20
years, at least 10 years beyond such stated maturity date.
(xlix) [Reserved].
(l) [Reserved].
(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 either (A) permits
defeasance (1) except for the Loan REMIC Loans set forth in Schedule 53,
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 or (B) requires that a legal opinion be
delivered with respect to the defeasance and the REMIC Provisions. 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), and provide for the following items
(or otherwise contain provisions pursuant to which the holder can require
such items): (a) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan for
the remainder of its term, (b) an Opinion of Counsel that the defeasance
complies with all applicable REMIC Provisions, and (c) a letter from the
Rating Agencies that the defeasance will not result in the withdrawal,
downgrade or qualification of the ratings assigned to the Certificates.
(liv) Under the terms of the related Mortgage Loan documents, 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, with
respect to the Bridger Mortgage Loans, in the event of a default under the
relevant Mortgage Loan documents, the Mortgagee may (subject to applicable
law) elect that option (2) applies.
(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,
neither Responsible Party has taken any action which would materially
impair such policy, and to each Responsible Party's actual knowledge, no
other person has taken any action which would materially impair such
policy.
(lvii) Except as described in Schedule 57, each Mortgage Loan
originated by a Responsible Party or by one of its approved originators
was underwritten consistent in all material respects with the standards of
the related Responsible Party as then in effect.
(lviii) An appraisal of the related Mortgaged Property was
conducted in connection with the origination of the Mortgage Loan, which
appraisal is signed by an appraiser, who, to the Seller's actual
knowledge, had no interest, direct or indirect, in the Mortgaged Property
or the Mortgagor or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan; the appraisal satisfies the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect on the date
the Mortgage Loan was originated.
(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, neither Responsible Party has
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) Except as described in Schedule 60, 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) In selecting the Mortgage Loan for sale to the Depositor,
neither Responsible Party employed selection procedures which were
intended to adversely affect the interests of the Certificateholders in
any material respect.
(d) 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. Bank of America has no obligation to cure any breach of any
representation or warranty made by BCRF with respect to a Bridger Mortgage Loan
nor to repurchase any Bridger Mortgage Loan. It is also further understood and
agreed that BCRF makes no representations or warranties with regard to the Bank
of America Mortgage Loans and that BCRF has no obligation to cure any breach of
any representation or warranty made by Bank of America with respect to a Bank of
America Mortgage Loan nor to repurchase any Bank of America Mortgage Loan.
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 and the 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
California, 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 the ability of the
Master Servicer to perform its obligations under this Agreement.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable 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 the
ability of the Master Servicer to perform its obligations under this
Agreement.
(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 the ability of the Master Servicer to
perform its obligations under this Agreement.
(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, 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 and the 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 Florida,
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 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 Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer 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 and the 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 the Trustee for
the benefit of REMIC II, REMIC IIU, REMIC III and the Grantor Trust to receive
distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, 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 Class R-IIU Certificates, the REMIC
IIU Regular Interests, the REMIC III Certificates, the Class A-2F Regular
Interest and the Class A-2F Certificates. As of the Original Closing Date, the
Trustee has acknowledged the assignment to it of the REMIC I Regular Interests
and as of the Sequel Closing Date declares that it holds and will continue to
hold the same in trust for the exclusive use and benefit of all present and
future Holders of the Class R-II Certificates, the Class R-IIU Certificates, the
Unaffected Certificates, the REMIC III Certificates and the Class A-2F Regular
Interest and the Trust as holder of the REMIC II Uncertificated Regular
Interests, the REMIC IIU Regular Interests and the Class A-2F Regular Interest.
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 Sequel Closing Date, the Class MA-1, Class MA-2, Class MB, Class MC,
Class MD, Class ME, Class MF, Class MG, Class MH, Class MJ and Class MX
Uncertificated Interests have been issued to the Depositor in exchange for the
Certificates designated as the Class A-1, Class A-2, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J Certificates and Class X under the
Original 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 Certificates and the Trustee
for the benefit of REMIC IIU, REMIC III and the Grantor Trust to receive
distributions from the proceeds of REMIC II shall be as set forth in this
Agreement.
SECTION 2.12 Conveyance of the Class MA-1 and Class MA-2
Uncertificated Interests; Acceptance of such Interests by the Trustee.
The Depositor, as of the 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 and Class
MA-2 Uncertificated Interests to the Trustee for the benefit of the Holders of
the REMIC IIU Regular Interests, the Class R-IIU Certificates, the REMIC III
Certificates, the Class A-2F Regular Interest and the Class A-2F Certificates.
The Trustee acknowledges the assignment to it of the Class MA-1 and Class MA-2
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
Class R-IIU Certificates, the REMIC III Certificates and the Class A-2F
Certificates and the Trust as holder of the REMIC IIU Regular Interests and the
Class A-2F Regular Interest.
SECTION 2.13 Issuance of the Class R-IIU Certificates; Creation of
the REMIC IIU Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC IIU, and in exchange therefor, at the direction of the
Depositor, the REMIC IIU Regular Interests have been issued as of the Sequel
Closing Date and the Trustee has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-IIU Certificates in authorized
denominations. The interests evidenced by the REMIC IIU Regular Interests and
the Class R-IIU Certificates constitute the entire beneficial ownership of REMIC
IIU. The rights of the Class R-IIU Certificateholder and the Trustee for the
benefit of REMIC III and the Grantor Trust to receive distributions from the
proceeds of REMIC IIU shall be as set forth in this Agreement.
SECTION 2.14 Conveyance of the Class UA-1, Class UA-2, Class UA-2F,
Class MB, Class MC, Class MD, Class ME, Class MF, Class MG, Class MH and Class
MJ Uncertificated Interests; Acceptance of such Interests by the Trustee.
The Depositor, as of the 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-1, Class UA-2,
Class UA-2F, Class MB, Class MC, Class MD, Class ME, Class MF, Class MG, Class
MH, Class MJ and Class MX Uncertificated Interests to the Trustee for the
benefit of the Holders of the REMIC III Certificates, the Class A-2F Regular
Interest and the Class A-2F Certificates. The Trustee acknowledges the
assignment to it of the Class UA-1, Class UA-2, Class UA-2F, Class MB, Class MC,
Class MD, Class ME, Class MF, Class MG, Class MH, Class MJ and Class MX
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 III Certificates and the Class A-2F Certificates and the Trust as holder
of the Class A-2F Regular Interest.
SECTION 2.15 Issuance of the REMIC III Certificates and the Class
A-2F Regular Interest.
Concurrently with the assignment to the Trustee of assets included
in REMIC III, and in exchange therefor, at the direction of the Depositor, the
Class A-2F Regular Interest has been issued as of the Sequel Closing Date and
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class X and Class R-III Certificates in
authorized denominations. The interests evidenced by the REMIC III Certificates
and the Class A-2F Regular Interest constitute the entire beneficial ownership
of REMIC III. The rights of the REMIC III Certificates, the Class A-2F
Certificates and the Trust as holder of the Class A-2F Regular Interest to
receive distributions from the proceeds of REMIC III shall be as set forth in
this Agreement.
SECTION 2.16 Conveyance of the Class A-2F Certificates, the Loan
REMIC Residual Interests and the Excess Interest.
The Depositor, as of the 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 (i) the Class A-2F Regular
Interest, (ii) the Loan REMIC Residual Interests and (iii) the Excess Interest
to the Trustee for the benefit of the Holders the Class A-2F Certificates, the
Class R-I Certificates and the Class V Certificates, respectively. The Trustee
acknowledges the assignment to it of (i) the Class A-2F Regular Interest, (ii)
the Loan REMIC Residual Interests and (iii) the Excess Interest and declares
that it will hold the same in trust for the exclusive use and benefit of all
present and future holders of the Class A-2F Certificates, this Class R-I
Certificates and the Class V Certificates, respectively.
SECTION 2.17 Issuance of Class A-2F Certificates and Class V
Certificates.
The Depositor, as of the Sequel Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the Class
A-2F Regular Interest to the Trustee for the benefit of the respective Holders
of the Class A-2F Certificates. The Trustee acknowledges the assignment to it of
the Class A-2F Regular Interest and acknowledges entering into the Swap Contract
pursuant to Section 3.28 and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
Class A-2F Certificates.
The Depositor, as of the Original Closing Date, and concurrently
with the execution and delivery of this Agreement, has assigned without recourse
all the right, title and interest of the Depositor in and to the Excess Interest
to the Trustee for the benefit of the respective Holders of the Class V
Certificates. The Trustee acknowledges the assignment to it of the Excess
Interest and declares that it holds and will continue to hold the same in trust
for the exclusive use and benefit of all present and future Holders of the Class
V Certificates.
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 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, in which case the Sub-Servicers shall so act (including the
execution of documents on behalf of the Master Servicer on behalf of the Trustee
described in clause (i), clause (ii) and clause (iii) of the next sentence;
provided, however, that execution of the documents described in clause (iii) of
the next sentence shall require the consent of the Master Servicer), 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.
(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 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; and, provided, further, that neither
the Master Servicer nor the Special Servicer shall, with respect to any ARD Loan
after its Anticipated Repayment Date, take any enforcement action with respect
to the payment of Excess Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the good faith and
reasonable judgment of the Special Servicer, and without regard to such Excess
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Excess Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the Master Servicer or the Special Servicer each may waive any
Default Charges and/or Default Interest 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
written 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 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 related Mortgagor 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 within two (2) Business Days after receipt 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), 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, (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)). 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 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.
(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 within two (2) Business Days after receipt 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 IIU Distribution Account, the REMIC III
Distribution Account and the Floating Rate 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 applicable
Mortgage Loan Seller or its related 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) to the extent allocable to the period that any Mortgage
Loan is a Specially Serviced Mortgage Loan, all payments on account of
Default Charges and Default Interest on such Mortgage Loan as provided in
Section 3.05(a)(viii);
(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;
(ix) any proceeds from the repurchase of Mortgage Loans by a
Mortgage Loan Seller under Section 2.03 of this Agreement; and
(x) all payments on account of Excess Interest.
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, Net Default Interest, charges for beneficiary
statements or demands, charges for checks returned for insufficient funds on
accounts held by the Special Servicer 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 IIU Regular Interests, the REMIC III
Uncertificated Regular Interest 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.
All such amounts deposited in respect of the Loan REMIC Loans shall
be deemed to be distributed in respect of the Loan REMIC Regular Interests and
the Loan REMIC Residual Interests as set forth in the Loan REMIC Declarations or
distributed as Excess Interest as set forth herein.
(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 IIU Regular Interests, the REMIC III
Uncertificated Regular Interest, and the Certificateholders (other than the
Class R-I and Class V 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)(iv) 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
Certificates 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 IIU
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 IIU
Regular Interests and the REMIC III Uncertificated Regular Interest and the
Certificateholders (other than the holders of the Unaffected Certificates, the
Class R-I, Class R-II and Class V Certificateholders). The REMIC IIU
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 IIU 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 and Class MA-2 Uncertificated Interests, respectively, pursuant
to Section 4.01(a)(ii) and Section 4.01(c)(iv) hereof on such date and (ii) to
withdraw from the REMIC IIU Distribution Account and distribute to the holders
of the Class R-IIU Certificates on such Distribution Date the portion of the
Available Distribution Amount to be distributed in respect thereof pursuant to
Section 4.01(a)(v) on such date.
(e) 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 Holders of the REMIC III
Certificates and the Trust as holder of the REMIC III Uncertificated Regular
Interest. 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 (i) to withdraw from the REMIC IIU Distribution Account and
shall be deemed to deposit in the REMIC III 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-1, Class UA-2 and Class UA-2F
Uncertificated Interests, respectively, pursuant to Section 4.01(a)(ii) and
Section 4.01(c)(iv) hereof on such date, (ii) 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 and the Prepayment Premiums to be distributed in respect of the Class MB,
Class MC, Class MD, Class ME, Class MF, Class MG, Class MH, Class MJ and Class
MX Uncertificated Interests pursuant to Section 4.01(a)(ii) and Section
4.01(c)(iv) hereof on such date and (iii) to withdraw from the REMIC III
Distribution Account and distribute to the Holders of the Class R-III
Certificates on such Distribution Date the portion of the Available Distribution
Amount to be distributed in respect thereof pursuant to Section 4.01(b)(xlvi) on
such date.
(f) 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 IIU Distribution Account
and the REMIC III Distribution Account and Floating Rate 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 and (ii) the Sequel Closing Date, in the case of the REMIC
IIU Distribution Account and the REMIC III Distribution Account and Floating
Rate Account. The Trustee shall give notice to the other parties hereto of the
new location of such accounts prior to any change thereof.
(g) On or before the Closing Date, the Trustee shall establish and
maintain the Floating Rate Account for the benefit of the Class A-2F
Certificateholders. The Floating Rate Account shall (i) at all times be an
Eligible Account, (ii) be entitled: "Wells Fargo Bank Minnesota, as Trustee, in
trust for Holders of the Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-1, Floating Rate Account, Class
A-2F" and (iii) relate solely to the Class A-2F Certificates, and the Trustee
shall have the exclusive right to withdraw funds therefrom. The Trustee shall be
deemed to transfer from the REMIC III Distribution Account on each Master
Servicer Remittance Date an amount equal to those amounts payable under the
related Class A-2F Regular Interest pursuant to Section 4.01(b) for the related
Distribution Date and Section 4.01(k) hereof and shall deposit into the Floating
Rate Account all amounts received under the Swap Documents in respect of such
Distribution Date. Amounts in the Floating Rate Account shall be held
uninvested. The Trustee shall make withdrawals from the Floating Rate Account in
the following order of priority and only for the following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to make distributions to the Holders of the Class A-2F
Certificates pursuant to Section 4.01(k);
(iii) to pay any funds required to be paid to the Swap
Counterparty under the Swap Documents on or before 5:00 p.m. (New York
time) on each Master Servicer Remittance Date; and
(iv) to clear and terminate the Floating Rate Account pursuant to
Section 9.1.
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 and the Excess Interest Distribution Account the Master Servicer
Remittance Amount for, and, to the extent permitted or required by Section
4.03(a) or Section 4.06, as applicable, 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;
(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 and Standby Fees;
(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 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
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 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 Interest 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 or the Master Servicer, as applicable,
in that order, any Advance Interest due and owing thereto, the Trustee's
and the Master Servicer's respective rights to payment pursuant to this
clause (viii) being payable from, and limited to Default Interest (and not
Default Charges) collected in respect of the Mortgage Loan or REO Loan as
to which the related Advances were made (for the avoidance of doubt, it is
intended that the related Sub-Servicers shall receive Net Default Interest
and Default Charges allocable to the period when such Mortgage Loan was
not a Specially Serviced Mortgage Loan, even if such Net Default Interest
and Default Charges are actually collected after the Mortgage Loan becomes
a Specially Serviced Mortgage Loan);
(ix) at or following such time as the Master Servicer reimburses
itself 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 clauses (vii) and (viii)
above, to pay the Trustee 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 (subject, however, to Section 3.19(e) of this Agreement) 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(b), (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), (E) the cost of
recording this Agreement in accordance with Section 11.02(a), and (F) the
costs and expenses related to enforcement of the Environmental Policy
under Section 3.27;
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Sellers, 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, to the
extent that the Trustee has incurred expenses reimbursable by the
Depositor under Section 8.13, 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) [Reserved];
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01; and,
(xix) to withdraw Funds deposited into the Certificate Account in
error.
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. Any amounts withdrawn from
the Certificate Account pursuant to clauses (ii) through (xvii) above that are
specific to the Loan REMIC Loans shall be allocated to the related Loan REMIC,
provided that any unpaid Master Servicing Fee shall be paid by the Lower-Tier
REMIC in respect of the related Loan REMIC Regular Interest; and any amount so
withdrawn that is not specific to a particular Mortgage Loan shall be allocated
by the REMIC Administrator among REMIC I and the Loan REMICs in proportion to
the Stated Principal Balances of their related Mortgage Loans.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan (and on a property-by-property basis for REO Loans)
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 (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
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
(or such third party contractors) 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 may, from time to time, make withdrawals from the
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 or be deemed
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(h), 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(d) 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III 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(h); and
(vii) to transfer to the Interest Reserve Account an amount equal
to the Withheld Amounts for the one month period preceding the
Distribution Date in each February (and in any January of a year which is
not a leap year) pursuant to Section 4.05; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on the Loan REMICs, REMIC I, REMIC II, REMIC IIU or
REMIC III shall be allocated to the related REMIC, and amounts withdrawn from
the Distribution Account pursuant to clauses (ii) through (v) above shall be
allocated by the REMIC Administrator among REMIC I and the Loan REMICs in
proportion to the Stated Principal Balances of their related Mortgage Loans.
(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 IIU 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 and Class MA-2 Uncertificated
Interests on each Distribution Date pursuant to Sections 4.01(a)(i) and
4.01(c)(iv) or Section 9.01, as applicable, and (B) to deposit into the REMIC
III 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, Class MD, Class ME, Class MF, Class MG, Class
MH, Class MJ and Class MX Uncertificated Interests on each Distribution Date
pursuant to Sections 4.01(a)(i) and 4.01(c)(iv) 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 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 IIU Distribution Account for any of the following purposes: to deposit
into the REMIC III Distribution Account the portion of the Available
Distribution Amount and Prepayment Premiums to be distributed in respect of the
REMIC IIU Regular Interests on each Distribution Date pursuant to Section
4.01(a)(ii) and Section 4.01(c)(iv) or Section 9.01, as applicable; and (ii)
shall make withdrawals from the REMIC IIU Distribution Account for any of the
following purposes: (A) to make distributions to Holders of the Class R-IIU
Certificates pursuant to Section 4.01(a)(v) or Section 9.01, as applicable, and
(B) to clear and terminate the REMIC IIU 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 III Distribution Account for any of the following purposes: to deposit
into the Floating Rate Account the portion of the Available Distribution Amount
and Prepayment Premiums to be distributed in respect of the Class A-2F Regular
Interest on each Distribution Date pursuant to Section 4.01(b) and Section
4.01(c)(i) or Section 9.01, as applicable and (ii) shall make or be deemed to
make withdrawals from the REMIC III Distribution Account for the following
purposes: (A) to make distributions on the Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J and Class X Certificates
on each Distribution Date pursuant to Sections 4.01(b), 4.01(c)(i) or Section
9.01, as applicable, and (B) to make distributions to Holders of the Class R-III
Certificates pursuant to Section 4.01(b) 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.
SECTION 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest Distribution Account and the REO
Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, and the Special Servicer may direct any
depository institution maintaining the REO Account and the Trustee may direct
any depository institution maintaining the Interest Reserve Account and the
Excess Interest Distribution 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 Special Servicer
(with respect to Permitted Investments of amounts in the REO Account), on behalf
of the Trustee for the benefit of the Certificateholders, and the Trustee (with
respect to the Interest Reserve Account and the Excess Interest Distribution
Account), on behalf of the Certificateholders, shall (and the Trustee hereby
designates the Master Servicer, the Special Servicer or itself, 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 Servicing Account) or the Special Servicer (in the case of the REO
Account) and the Trustee (in the case of the Interest Reserve Account and the
Excess Interest Distribution 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 and the Servicing 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 Trustee directs the investment of funds in
the Interest Reserve Account and the Excess Interest Distribution 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 Trustee
and shall be subject to withdrawal by the Trustee. 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), the Special Servicer
(in the case of the REO Account) and the Trustee (in the case of the Interest
Reserve Account and the Excess Interest Distribution 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 in respect to losses incurred in respect of any Permitted Investment on
deposit in the Interest Reserve Account and the Excess Interest Distribution
Account and 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), 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 direct the Master Servicer to maintain for each REO Property or Specially
Serviced Mortgage Loan, 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 Master
Servicer shall be reimbursed for the premium costs thereof and any deductible
relating to such insurance 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.
(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 and any deductible 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
by the Master Servicer at the direction of the Special Servicer (in the
case of a Specially Serviced Mortgage Loan) under Section 3.07(a) which is
reimbursable to the Master Servicer 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 force
placed 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
Master Servicer at the direction of the Special Servicer shall cause any
REO Property, to be covered by such force placed 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, shall constitute
a Servicing Advance which is reimbursable to the Master Servicer pursuant
to and to the extent permitted under Section 3.05(a). 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 force
placed 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 force placed 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 force placed 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.
(b) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement keep in force with Qualified
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
Qualified 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.
(c) All insurance coverage required to be maintained under this
Section 3.07 shall be obtained from Qualified Insurers or insurers that are
backed or guaranteed by 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 right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" clause, other than, to the extent any such Mortgage Loans
are recourse, 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 (5) 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 a request for approval of the assumption by
the Directing Certificateholder or Special Servicer, as the case may be,
(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 (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. In addition, the Master Servicer or the
Special Servicer, as the case may be, if consistent with the Servicing
Standard, may require as a condition of its approval that the related
Mortgagor pay all costs associated with such transfer. 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 (1) shall have
provided, at least ten (10) 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 a request for approval of a
waiver of the due-on-encumbrance or due-on-sale clause by the Directing
Certificateholder or Special Servicer, as the case may be, and (2) upon request
made within such ten (10) 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 (3) in the case of the Master Servicer, shall
have obtained the prior written approval of the Special Servicer of a waiver of
the due-on-encumbrance or due-on-sale clause; 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" or due-on-sale clause, 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. The Master Servicer
or the Special Servicer, as applicable may condition its consent or waiver upon
the Mortgagor paying all related costs and expenses.
(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, the Special Servicer shall notify
the Master Servicer of its decision within ten (10) 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) If the Special Servicer has not responded to the Master
Servicer's request within 10 Business Days. The Special Servicer will have been
deemed to have granted its approval of such request.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer, in accordance with the Servicing Standard
and subject to subsections (b) through (d) of this Section 3.09 and Section
3.18, shall use its reasonable efforts to foreclose upon, repossess or otherwise
comparably covert the ownership of Mortgaged Properties securing such of the
Specially Serviced Mortgage Loans as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments of such Mortgage Loan, the sale of such Mortgage Loan in accordance
with this Agreement or the modification of such Mortgage Loan in accordance with
this Agreement. In connection with such foreclosure or other conversion of
ownership, the Special Servicer shall follow the Servicing Standard. The
foregoing is subject to the proviso that the Special Servicer shall not request
that the Master Servicer make a Servicing Advance for Liquidation Expenses
unless the Special Servicer shall determine, consistent with the Servicing
Standard, (i) that such foreclosure will increase on a net present value basis
the Liquidation Proceeds of the Specially Serviced Mortgage Loan to the Trust
and (ii) that such Liquidation Expenses will be recoverable from Liquidation
Proceeds, and any such Servicing Advance by the Master Servicer shall be subject
to the determination of recoverability contemplated by Section 3.11(g). The
Special Servicer shall 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 the Master 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 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 the
Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III 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
(or, in the case of an ARD Loan after its Anticipated Repayment Date, at
the related Net Mortgage Rate immediately prior to the Anticipated
Repayment Date)), 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
(or, in the case of an ARD Loan after its Anticipated Repayment Date, at
the related Net Mortgage Rate immediately prior to the Anticipated
Repayment Date)), 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).
No Phase I Environmental Assessment shall be older than twelve (12)
months; provided, however, that if the Phase I Environmental Assessment is
between twelve (12) and eighteen (18) months old, then the Special Servicer
shall furnish an updated data base search; provided further, that if the Phase I
Environmental Assessment is older than eighteen (18) months, then the Special
Servicer shall furnish an entirely new Phase I Environmental Assessment.
(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
Trustee, the Master Servicer 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 related 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 J, Class K, Class L, Class M, Class N, Class O
and Class P 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 Master Servicer, based solely upon data furnished to the
Master Servicer by the Special Servicer within 15 days after calendar year end,
within 45 days after calendar year end, shall file the information returns with
respect to the receipt of any mortgage interest received in a trade or business,
shall file the reports of foreclosures and abandonments and reports relating to
any cancellation of indebtedness income with respect to any Mortgaged Property
in the manner required by 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 the
Code with respect to any Mortgaged Property which is abandoned or foreclosed.
Notwithstanding the foregoing, Master Servicer shall have no liability (1) for
the failure to file such reports when due, if the required information is not
furnished by the Special Servicer to Master Servicer as stated above including
without limitation penalties, or (2) for the accuracy, quality or completeness
of any information contained in such reports or the failure to furnish any
required information.
(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, 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, certified
by a Servicing Officer, 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, the Master Servicer and the Rating Agencies 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 Closing Date) and applicable law,
and without giving effect to any Excess Interest that may accrue on any ARD Loan
after its Anticipated Repayment Date. The Servicing Fees with respect to the
Loan REMIC Loans shall be expenses of REMIC I in respect of the related Loan
REMIC Regular Interests, payable at the same time and in the same manner as any
other Servicing Fees. 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 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.
(b) The Master Servicer shall be entitled to receive as additional
servicing compensation:
(i) assumption fees, modification fees, charges for beneficiary
statements or demands and any similar fees (excluding Prepayment
Premiums), in each case to the extent actually paid for the related
Collection Period 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 (subject, however, to Section 3.19(e) of this Agreement);
(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), (ii) and (v) 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.
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 master or 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 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 Closing Date) and applicable law, and without giving effect to any
Excess Interest that may accrue on any ARD Loan after its Anticipated Repayment
Date. The Special Servicing Fee with respect to any Specially Serviced Mortgage
Loan or REO Loan shall cease to accrue as of the date a Liquidation Event occurs
in respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees shall be payable monthly out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the 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 Closing Date) and applicable law, and without giving effect
to any Excess Interest that may accrue on any ARD Loan after its Anticipated
Repayment Date. Standby Fees shall be payable monthly by the Master Servicer on
a loan-by-loan basis out of its Master Servicing Fees received or as advanced by
the Master Servicer with respect to each Mortgage Loan and each REO Loan.
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, unless the basis on which such Mortgage Loan became a
Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the related Mortgage Loan Seller's obligation to repurchase such
Mortgage Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is
repurchased within the 90-day period (or, if an additional 90-day extension is
permitted under Section 2.03, 180-day period) described in Section 2.03(a), no
Workout Fee will be payable from or based upon the receipt of, any Purchase
Price paid by the related Mortgage Loan Seller in satisfaction of such
repurchase obligation. 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, 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, in the case of an ARD Loan after its Anticipated Repayment Date, Excess
Interest) and principal 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, 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 related 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, (excluding any portion of such payoff and/or proceeds that represents
accrued but unpaid Excess Interest with respect to an ARD Loan after its
Anticipated Repayment Date or accrued but unpaid Default Interest); provided
that no Liquidation Fee will be payable with respect to any such Specially
Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided,
further, 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 or REO Property described in the
parenthetical to the first sentence of this paragraph or in connection with a
condemnation or other governmental taking of a Mortgaged Property or REO
Property.
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.
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 allocable to 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 and Net Default Interest actually
collected on such Mortgage Loan or REO Loan for the related Collection
Period, as the case may be; provided, however, that only those Net Default
Charges which accrue on or after the Mortgage Loan becomes a Specially
Serviced Mortgage Loan shall be payable hereunder, and (B) assumption
fees, 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, 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 the Master Servicer is required under this Agreement to make
a Servicing Advance, but does not do so within 15 days after such Servicing
Advance is required to be made, the Trustee shall, if it has actual knowledge of
such failure on the part of the Master Servicer, give notice of such failure to
the Master Servicer. If such Servicing Advance is not made by the Master
Servicer within five (5) Business Days after such notice, then (subject to
Section 3.11(g) below) the Trustee shall make such Servicing Advance. Any
failure by the Master Servicer to make a Servicing Advance it is required to
make hereunder shall constitute an Event of Default by the Master Servicer,
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 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 Interest collected on or in respect of the related Mortgage Loan
during, and 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 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,
neither the Master Servicer (at the direction of the Special Servicer in the
case of Specially Serviced Mortgage Loans) nor 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 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, the Special Servicer 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 (at the direction of the Special Servicer in the case of
Specially Serviced Mortgage Loans) 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 (at the
direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) 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 2002, the Master Servicer or, in the case of any
inspection required to be performed 60 days after delinquency, 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, 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 as soon as
practicable 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 or (v) any capital improvements made that
are evident from such inspection. The Master Servicer and Special Servicer each
shall (i) within 30 days of the preparation thereof, deliver 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 J, Class
K, Class L, Class M, Class N, Class O and Class P 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, quarterly or other periodic 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. 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 Operating Income and Debt Service Coverage Ratios for
the related Mortgage Loans, REO Loans and the related Mortgaged Properties and
any extraordinary increases or decreases in expenses or revenues associated with
the related Mortgaged Properties and REO Properties (or, in the case of
Specially Serviced Mortgage Loans shall deliver such reports or related data
fields as reasonably requested by the Master Servicer); and (iii) subject to
Section 4.02(b), deliver copies of the collected items supporting the reports,
and deliver the written reports prepared in respect thereof, upon request, to
the Directing Certificateholder, the Rating Agencies, each other and the
Trustee, in each case within 30 days of the later of receipt of such collected
items or request 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 J, Class K, Class L, Class M, Class
N, Class O and Class P 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 (with a copy to
the Master Servicer in the case of Special Servicer's annual compliance
statement) will deliver to the Rating Agencies, the Depositor and the Trustee,
which shall, as required by Section 8.12(b), upon written request of a Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificateholder,
deliver a copy to such Holder, with a copy to the Depositor, on or before April
30 of each year, beginning April 30, 2002, 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, 2002 (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 J, Class K, Class L, Class M, Class N, Class O
and Class P Certificateholder, to such Holder, to the effect that such firm (i)
has obtained a letter of representation regarding certain matters from the
management of the Master Servicer and the Special Servicer, as the case may be,
which includes an assertion that the Master Servicer and the Special Servicer,
as the case may be, has complied with certain minimum mortgage loan servicing
standards (to the extent applicable to commercial and multifamily mortgage
loans), identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the servicing of commercial and multifamily mortgage loans during the most
recently completed calendar year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the American
Institute of Certified Public Accountants, such representation is fairly stated
in all materials respects, subject to such exceptions and other qualifications
that may be appropriate. In rendering its report such firm may rely, as to
matters relating to the direct servicing of 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 other such party, the Depositor, the Trustee 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 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) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer shall use its reasonable best efforts to sell any
REO Property in accordance with the Servicing Standard, but prior to the end of
the third calendar year following the end of the year of its acquisition unless
(i) the Trustee, has been granted an extension of time (an "REO Extension")
(which extension shall be applied for at least 60 days prior to the expiration
of the period specified above) by the Internal Revenue Service to sell such REO
Property in which case the Special Servicer shall continue to attempt to sell
the REO Property for its Net Present Value for such period longer than the
period specified above as such REO Extension permits or (ii) the Special
Servicer seeks and subsequently receives, at the expense of the Trust, a Opinion
of Counsel, addressed to the Trustee and the Special Servicer, to the effect
that the holding by the Trust of such REO Property subsequent to the period
specified above after its acquisition will not result in the imposition of taxes
on "prohibited transactions" of a REMIC, as defined in Section 860F(a)(2) of the
Code, or cause any Loan REMIC or Trust REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding. If the Trustee has not received
an REO Extension or such Opinion of Counsel and the Special Servicer is not able
to sell such REO Property within the period specified above, or if an REO
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall before the
end of such period or extended period, as the case may be, auction the REO
Property to the highest bidder (which may be the Special Servicer) in accordance
with the Servicing Standard; provided, however, that no Interested Person shall
be permitted to purchase the REO Property at a price less than the Purchase
Price except as provided in Section 3.18; and provided, further that if the
Special Servicer intends to bid on any REO Property, (i) the Special Servicer
shall notify the Trustee of such intent, (ii) the Trustee shall promptly obtain,
at the expense of the Trust an Appraisal of such REO Property and (iii) the
Special Servicer shall not bid less than the fair market value set forth in such
Appraisal.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), 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 calendar month, 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).
(e) The REO Properties and the related REO Accounts with respect to
the Loan REMIC Loans shall be treated as assets of the related Loan REMICs for
all purposes of this Agreement.
SECTION 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment). 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) None of the parties hereto is permitted to sell or purchase, or
permit the sale or purchase of, a Defaulted Mortgage Loan unless the terms and
conditions set forth in this Section 3.18 or those set forth in or contemplated
by Section 2.03 and Section 9.01. The Mortgage Loan will be a "Defaulted
Mortgage Loan" if it is a Specially Serviced Mortgage Loan which is in default
under the terms of applicable Mortgage Loan documents and for which any
applicable grace period has expired. In connection with such foreclosure or
other conversion of ownership, the Special Servicer will follow the Servicing
Standard.
(b) If any Mortgage Loan becomes a Defaulted Mortgage Loan, the
Special Servicer shall determine the Net Present Value (in accordance with the
procedures set forth in the definition of such terms) of each of the following
asset disposition methods (each, an "Asset Disposition Method") with respect to
such Defaulted Mortgage Loan: (i) sell the Defaulted Mortgage Loan in accordance
with and pursuant to the procedures described in subsection (c) below; (ii)
pursue negotiations with the related Mortgagor designed to workout such
Defaulted Mortgage Loan in a manner that results in the Defaulted Mortgage Loan
(A) becoming a Corrected Mortgage Loan with no modification of any financial
term of such Corrected Mortgage Loan, (B) being modified as to one or more
financial terms and becoming a Corrected Mortgage Loan, or (C) paid off due to
the acceptance of a discounted payoff from the Mortgagor (in each case, a
"Workout"); and (iii) foreclose upon or otherwise convert to ownership the
related Mortgaged Property and sell the related REO Property pursuant to Section
3.16 (a "Foreclosure"). The Special Servicer shall follow the Asset Disposition
Method that has the highest Net Present Value. To the extent consistent with the
Servicing Standard, the Special Servicer is permitted to recalculate the Net
Present Value of a Defaulted Mortgage Loan based upon changed circumstances or
new information and utilize Asset Disposition Methods to the extent warranted by
such recalculated Net Present Value. In connection with the consideration of the
Asset Disposition Method described in clause (i) of this Section 3.18(b), the
Majority Certificateholder of the Controlling Class, the Special Servicer and
the Master Servicer in that order shall have the right, at its option, purchase
such Defaulted Mortgage Loan from the Trust (to be exercised within 15 Business
Days after receipt of notice that the Special Servicer has determined to sell
the Defaulted Mortgage Loan) at a price equal to the Purchase Price and, in the
event that a Defaulted Loan Purchaser notifies the Special Servicer that it
intends to exercise such option, then a sale of the Defaulted Mortgage Loan to
the Defaulted Loan Purchaser pursuant to such option shall be deemed to be the
Asset Disposition Method that has the highest Net Present Value.
(c) In the event that the Defaulted Loan Purchaser exercises its
purchase option pursuant to paragraph (b) above with respect to a Defaulted
Mortgage Loan, the Special Servicer shall cause the Trustee to sell such
Defaulted Mortgage Loan to the Defaulted Loan Purchaser at the Purchase Price.
Otherwise, if and when the Special Servicer determines that the Net Present
Value of a sale of such Defaulted Mortgage Loan is higher than the Net Present
Value of either a Work-out or a Foreclosure, it shall offer the Defaulted
Mortgage Loan for sale for cash. Such offering shall be made in a commercially
reasonable manner for a period of not less than 20 days. The Special Servicer
shall give the Majority Certificateholder of the Controlling Class, the Master
Servicer, and the Trustee not less than five days' prior written notice of its
intention to sell such Defaulted Mortgage Loan. The Special Servicer shall
accept the highest cash bid received from any Person for such Defaulted Mortgage
Loan in an amount at least equal to the Purchase Price therefor; provide,
however, that in the absence of any such bid, the Special Servicer shall accept
the highest cash bid received from any Person that exceeds the greater of the
Net Present Value of a Foreclosure or the Net Present Value of a Workout. In the
absence of any such bid, the Special Servicer shall proceed to Foreclose or
Workout such Defaulted Mortgage Loan, depending on which Asset Disposition
Method has the higher Net Present Value.
(d) If and when the Special Servicer determines that the Net Present
Value of a Foreclosure is higher than the Net Present Value of either a Workout
or a sale of the Defaulted Mortgage Loan, it shall proceed to foreclose on such
Defaulted Mortgage Loan and sell the related REO Property pursuant to this
Section 3.18. The Special Servicer shall give the Majority Certificateholder of
the Controlling Class, the Master Servicer and the Trustee not less than five
days' prior written notice of its intention to sell any such REO Property, and
in respect of such sale, the Special Servicer shall offer such REO Property in a
commercially reasonable manner.
(e) Subject to the REMIC Provisions, the Special Servicer shall act
on behalf of the Trust in negotiating and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, including the collection of all amounts payable in connection
therewith. Notwithstanding anything to the contrary herein, neither the Trustee,
in its individual capacity, nor any of its Affiliates may bid for or purchase
any Defaulted Mortgage Loan or REO Property. Any sale of a Defaulted Mortgage
Loan or REO Property shall be without recourse to, or representation or warranty
by, the Trustee, the Depositor, the Special Servicer, the Master Servicer, or
the Trust. Notwithstanding the foregoing, nothing herein shall limit the
liability of the Master Servicer, the Special Servicer or the Trustee to the
Trust and the Certificateholders for failure to perform its duties in accordance
herewith. None of the Special Servicer, the Master Servicer, the Depositor, the
Mortgage Loan Sellers, PSCC, or the Trustee shall have any liability to the
Trust or any Certificateholder with respect to the price at which a Defaulted
Mortgage Loan is sold if the sale is consummated in accordance with the terms of
this Agreement.
(f) The proceeds of any sale after deduction of the expenses of such
sale incurred in connection therewith shall be deposited within one Business Day
in the Certificate Account. 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 Defaulted Loan Purchaser 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 Defaulted
Loan Purchaser effecting such purchase (or any designee thereof).
(g) Subject to Sections 3.18(a) through 3.18(f) 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, 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.
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 by
electronic means 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, 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 60th day following 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 annually,
the Appraisal Reduction Amount, if any, with respect to such loan.
(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 J, Class K, Class
L, Class M, Class N, Class O and Class P Certificateholder, pursuant to 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 subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances which were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to 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 confirmed by both parties and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder, and accompanied by sufficient information for the Master
Servicer to make recoverability determinations, and at least seven (7) 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, 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. Subject to the following
paragraph, 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 (5) 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 and to determine recoverability. 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). 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 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 0.02% 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 Master Servicer (as to non-Specially Serviced Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans that
are not Defaulted Mortgage Loans and, as to consents to actions of the Master
Servicer) 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 and Excess
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 assumption or waiver of a 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 not be unreasonably
withheld), 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 3.02 (with
respect to Default Charges), Section 3.08 (with respect to due-on-sale and
due-on-encumbrance clauses), and Section 3.20(f) (with respect to Excess
Interest), 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 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
(or, in the case of an ARD Loan after its Anticipated Repayment Date, the
related Net Mortgage Rate in effect immediately prior to such Anticipated
Repayment Date)), than would liquidation;
(ii) neither the Master Servicer nor the Special Servicer may, 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 or, in the
case of any Mortgage Loan having as the Cut-Off Date a related Ground
Lease that did not have a term extending 20 years or more beyond the
maturity date of such Mortgage Loan, beyond a date which is 10 years or
more beyond the maturity date of such Mortgage Loan;
(iii) unless the proviso in Section 3.20(a)(i) above applies,
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
Sections 3.08 or 3.20(f) 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) neither the Master Servicer nor the Special Servicer shall
permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which additional or substitute collateral
constitutes real property, unless (A) the Master Servicer or the Special
Servicer, as applicable, shall have first determined in accordance with
the Servicing Standard, based upon 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), 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 additional or substitute
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) the Master Servicer or the
Special Servicer, as the case may be, have obtained written confirmation
from each Rating Agency that such substitution or addition will not result
in the downgrade, qualification (if applicable) or withdrawal of any
rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall
release or substitute 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)
applies 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 Operating
Income 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
Fitch, 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 Asset Status Report
approved by the Directing Certificateholder or the Certificateholders, as
applicable, in accordance with Section 3.21, unless it shall have proposed
such action to the Directing Certificateholder in the same manner as the
Asset Status Report as provided in the second paragraph of Section
3.21(d).
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 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. With respect to a request to the Special Servicer from
the Master Servicer for approval for a modification, waiver or consent with
respect to a Mortgage Loan that would not require Rating Agency review, the
Special Servicer shall notify the Master Servicer of its decision within ten
(10) 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 modification, wavier
or consent provided that if the Special Servicer has not responded to such
request, the Special Servicer will have been deemed to have granted its approval
to such request.
(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 the 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) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer (or, if the ARD Loan is a Specially Serviced Mortgage
Loan, the Special Servicer) shall be permitted, in its discretion, to waive
(such waiver to be in writing addressed to the related Mortgagor, with a copy to
the Trustee) all or any accrued Excess Interest if, prior to the related
maturity date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest; provided, that the Master Servicer's (or, if the ARD Loan is a
Specially Serviced Mortgaged Loan, the Special Servicer's) determination to
waive the right to such accrued Excess Interest is reasonably likely to produce
a greater payment 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 in effect
immediately prior to the related Anticipated Repayment Date) than a refusal to
waive the right to such Excess Interest; provided further, that such waiver
shall not be effective prior to the tender of such prepayment in full and such
Excess Interest shall remain due if such tender does not occur. The Master
Servicer (or, if the ARD Loan is a Specially Serviced Mortgage Loan, the Special
Servicer) will have no liability to the Trust, the Certificateholders or any
other person so long as such determination is based on such criteria.
(g) 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; Asset Status Report.
(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. At its option, although its Sub-Servicing Agreement is terminated,
the related Bank of America Sub-Servicer, without any compensation therefor, may
retain Mortgage Loans on its computer systems while such Mortgage Loans are
Specially Serviced Mortgage Loans, provided that no Bank of America Sub-Servicer
shall take any action with respect thereto so long as such Mortgage Loan is a
Specially Serviced Mortgage Loan, provided however, that the related Bank of
America Sub-Servicer will be entitled to the fees to which it would otherwise
have been entitled during the period that the Specially Serviced Mortgage
remained boarded on such Bank of America Sub-Servicer's computer system, if the
Bank of America Sub-Servicer was performing servicing functions at the request
of the Special Servicer. The Master Servicer shall use its best efforts to
comply with the second preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event. The Master Servicer shall
deliver to each Class J, Class K, Class L, Class M, Class N, Class O and Class P
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. If the related Bank of America
Sub-Servicer elects not to retain Specially Serviced Mortgage Loans on its
computer systems, then such Sub-Servicer shall return all Mortgage Loan Files to
the Master Servicer.
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, which information shall be provided by the Master Servicer) with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property. Notwithstanding the
foregoing sentence, at its option, the related Bank of America Sub-Servicer,
without compensation therefor, may retain Specially Serviced Mortgage Loans on
its computer systems, provided that such Bank of America Sub-Servicer shall take
action with respect thereto solely at the Master Servicer's and the Special
Servicer's direction provided however, that the related Bank of America
Sub-Servicer will be entitled to the fees to which it would otherwise have been
entitled during the period such Specially Serviced Mortgage Loan remains boarded
on such Bank of America Sub-Servicer's computer system, if the Bank of America
Sub-Servicer was performing servicing functions at the request of the Special
Servicer during such period.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03(d) of this Agreement, 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) No later than thirty (30) days after a Servicing Transfer Event
for a Mortgage Loan, the Special Servicer shall deliver to each Rating Agency,
the Master Servicer, the Trustee and the Directing Certificateholder a report
(the "Asset Status Report") with respect to such Mortgage Loan and the related
Mortgaged Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09(c)), consistent with
the Servicing Standard, that are applicable to the exercise of remedies as
aforesaid and to the enforcement of any related guaranties or other
collateral for the related Mortgage Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the terms
of the applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the Trustee and the Master Servicer a new Asset Status Report as soon
as practicable, but no later than thirty (30) days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. The Special Servicer may, from
time to time, modify any Asset Status Report it has previously delivered and
implement such report, provided such report shall have been prepared, reviewed
and not rejected pursuant to the terms of this Section. Notwithstanding the
foregoing, the Special Servicer (i) shall, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten (10)
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders and it has made a reasonable effort to contact the
Directing Certificateholder and (ii) in any case, shall determine whether such
disapproval is not in the best interest of all the Certificateholders pursuant
to the Servicing Standard. Upon making such determination in clause (ii) of the
immediately preceding sentence, the Special Servicer may request a vote by all
Certificateholders, but shall in any event take the recommended action after
making such determination. To accomplish such vote, the Special Servicer shall
notify the Trustee of such request and deliver to the Trustee a proposed notice
to Certificateholders which shall include a copy of the Asset Status Report, and
the Trustee shall send such notice to all Certificateholders. If the majority of
such Certificateholders, as determined by Voting Rights, fail, within five (5)
days of the Trustee's sending such notice, to reject such Asset Status Report,
the Special Servicer shall implement the same; provided, however, that the
Special Servicer shall in any event take such action as it shall determine to be
in the best interest of all the Certificateholders pursuant to the Servicing
Standard. If the Asset Status Report is rejected by the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described in this
Section 3.21(d). The Trustee shall be entitled to reimbursement from the Trust
Fund for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder shall (A) require or
cause the Special Servicer to violate the terms of a Specially Serviced Mortgage
Loan, applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each REMIC, or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Seller, the Trust Fund, the Trustee or their
officers, directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement.
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); (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
(provided, however, that the related Sub-Servicer shall not be required to
furnish the same information to the Master Servicer more than once) 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 Bank of America 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)
subject to Section 3.08(a)(ii), does not authorize any Sub-Servicer to approve a
modification or assumption 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 hereunder to make Advances shall be deemed to have been
advanced by the Master Servicer 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, 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 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 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.
(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) 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) each monitor the performance and enforce the
obligations of its 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 the Trustee, 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 J, Class K,
Class L, Class M, Class N, Class O and Class P 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 II, 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 such
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 the
average of three termination fees quoted by three Persons in the business of
primary-servicing commercial mortgage loans comparable to the Mortgage Loans
(not including the Master Servicer or any Person that is then a Subservicer),
which shall be selected by the Master Servicer in good faith and the names of
which shall be identified by the Master Servicer to the Subservicer 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. For the avoidance of
doubt, the Sub-Servicers that service any Bridger Mortgage Loan or BOA-Bridger
Mortgage Loan may not be terminated without cause by the initial Master
Servicer.
(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 and the Rating Agencies, 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. For
purposes of this paragraph, the terms "Master Servicer" and "Special Servicer"
shall mean the divisions or departments of such corporate entities involved in
providing services hereunder and their respective officers, directors and
employees, and shall not include any other divisions or departments, or any
Affiliates, of the Master Servicer or Special Servicer (including without
limitation any investor in any of the Certificates and any such division,
department or Affiliate engaged in the origination of, or investment in,
commercial or multifamily mortgage loans), all of which shall be regarded as
Persons not entitled to Confidential Information. 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 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 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 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 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.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency.
(d) The Master Servicer shall not approve the form and substance of
any required legal documents in connection with such defeasance unless (i) Fitch
and Moody's each 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, (ii) it shall have obtained an Opinion of
Counsel that the defeasance complies with applicable REMIC Provisions; and,
(iii) it shall have obtained an accountant's certification that the defeasance
collateral is sufficient to make payments under the related Mortgage Loan for
the remainder of its term.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, or if so requested
by the Rating Agencies, the Master Servicer shall use its best efforts to have
the related Mortgagor (i) designate a Single-Purpose Entity (if the borrower no
longer complies) to assume the Mortgage Loan and own the collateral and (ii)
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 a Mortgage relating to a hotel
or restaurant franchise permit the lender thereunder the right to consent to the
change of the franchise association (or "flag") of the related hotel or
restaurant, as the case may be, and subject to the Servicing Standard, the
Master Servicer shall not so consent unless each Rating Agency shall have
confirmed to it in writing that such change will not result in the downgrade,
qualification (if applicable) or withdrawal of the rating of any Class of
Certificates.
(g) To the extent that the terms of Mortgage Loan documents permit
the related Mortgagor, subsequent to the 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.
(h) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more, or constitutes 2% or more of the then
current principal balance of the Mortgage Pool, 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.
(i) 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, 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 Maintenance of 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.
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 delivered to the
Trustee).
As to a Mortgage Loan which is covered by the Environmental Policy,
upon (A) the occurrence of either a monetary or non-monetary default, which in
the Master Servicer's reasonable judgment (subject to the Servicing Standard)
materially and adversely affects such Mortgage Loan or Mortgaged Property,
beyond any applicable grace or cure period, and (B) notice or discovery that a
Mortgaged Property has suffered a "pollution condition" ("Pollution Condition")
as described in the Environmental Policy, the Master Servicer shall obtain, or
shall cause the related Subservicer to obtain, immediately following the Master
Servicer's or Subservicer's discovery or notification of such a default and
Pollution Condition, with a copy to the Special Servicer and to the Directing
Certificateholder, the following information, as applicable: (i) the nature of
any default and Pollution Condition, when each first occurred, when the Master
Servicer or Subservicer became aware of each, and whether such default and
Pollution Condition are 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 Condition, provide an address sufficient to
describe both the location of the affected Mortgaged Property and the location
of the Pollution Condition; (ii) whether the Master Servicer has a good faith
belief that the default will be cured and each Pollution Condition 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 shall obtain,
or shall cause the related Subservicer 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. In addition, the Master Servicer and
Sub-Servicers shall review and comply with all terms and conditions of the
Environmental Policy, including giving specific and timely notice thereunder.
Any and all amounts collected by the Master Servicer or the Trustee
or, except with respect to a Mortgage Loan which it has already repurchased
hereunder, any amount collected under the Environmental Policy shall be
immediately deposited in the Certificate Account. Costs and expenses (other than
extraordinary enforcement expenses related to the enforcement of the
Environmental Policy, including related judicial proceedings and "out-of-pocket"
costs and expenses of outside legal counsel, for which the Master Servicer shall
not be responsible and which shall be Trust expenses) incurred by the Master
Servicer in connection with this Section 3.27 shall be reimbursable out of the
Certificate Account. Neither the Master Servicer nor the Trustee shall be
required to incur any cost or expense for premiums for such Environmental
Policy; such costs shall be borne by the related Mortgage Loan Seller.
SECTION 3.28 Swap Documents.
(a) On the Sequel Closing Date, the Trustee, not in its individual
capacity but solely in its capacity as Trustee on behalf of the Trust is hereby
directed to enter into the Swap Contract, including, without limiting the
generality of the foregoing, the Schedule to the related ISDA Master Agreement
and the other Swap Documents with the Swap Counterparty.
(b) On the second Business Day prior to each Distribution Date,
based on the reports provided by the Master Servicer pursuant to Section 4.02(b)
or on information that the Trustee obtains from the Swap Counterparty pursuant
to Section 4.01(k) or the Swap Documents, and subject to the priorities set
forth in Sections 4.01(a) and 4.01(b) hereof, the Trustee shall calculate the
net payment, if any, due to the Swap Counterparty or payable to the Trustee by
the Swap Counterparty under the Swap Documents, based upon the projected payment
that will be payable on the Class A-2F Regular Interest pursuant to the
priorities set forth in Section 4.01(b) and the Pass-Through Rate of the Class
A-2F Regular Interest and the Class A-2F Certificates and the amount of any
Prepayment Premium payable on the Class A-2F Regular Interest. By 5:00 p.m. (New
York time) on each Master Servicer Remittance Date, the Trustee shall remit the
Net Swap Payment, if any, to the Swap Counterparty from the Floating Rate
Account to the Swap Counterparty. Such payment shall be deemed a distribution in
respect of the Class A-2F Regular Interest pursuant to Section 4.01(b), and of
corresponding amounts in respect of the Class UA-2F Uncertificated Interest, the
Class MA-1 or Class MA-2 Uncertificated Interests as the case may be, and the
Class LA-1 or Class LA-2 Uncertificated Interests as the case may be, pursuant
to Section 4.01(a)(ii) for such Distribution Date.
(c) The Trustee shall be deemed to deposit the amount distributed in
respect of the Class A-2F Regular Interest pursuant to Section 4.01(b) and,
promptly upon receipt of any payment or other receipt in respect of the Swap
Documents, the Trustee shall deposit the same, into the Floating Rate Account.
(d) The Trustee shall at all times enforce the Trust Fund's rights
under the Swap Documents, including without limitation, if a Rating Agency
Trigger Event occurs, the Trustee will enforce the Trust Fund's rights with
respect to the Swap Counterparty's obligations under the Swap Documents pursuant
to the terms of the Swap Documents to post collateral or find a replacement swap
counterparty that would not cause a Rating Agency Trigger Event.
The Trustee will have no obligation on behalf of the Trust Fund to
pay to the Swap Counterparty any portion of the Fixed Interest Distribution
unless and until the interest payment is deemed made on the Class A-2F Regular
Interest in respect of amounts actually received by the Trustee in the
Distribution Account from the Master Servicer on the Master Servicer Remittance
Date or any other date. The Trustee may receive funds from the Swap Counterparty
representing the net amount payable to the Trustee pursuant to the Swap
Documents and the Trustee shall be required to pay to the Swap Counterparty the
portion of interest and other amounts payable on the Class A-2F Regular Interest
which is equal to the net mount payable to the Swap Counterparty pursuant to the
Swap Documents (the "Net Swap Payment").
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 deemed to 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 or deemed to be distributed
on the REMIC I Regular Interests as set forth in Section 4.01(a)(ii) and
distributed on the Class R-I Certificates as set forth in Section 4.01(a)(iii).
Thereafter, such amounts shall be considered to be held in the REMIC II
Distribution Account and deemed to be distributed on the REMIC II Uncertificated
Regular Interests as set forth in Section 4.01(a)(ii) and on the Unaffected
Certificates and Class R-III Certificates as set forth in Section 4.01(b) (to
the extent of the Available Distribution Amount, the "REMIC II Distribution
Amount"). Such amounts deemed distributed on the Class MA-1 and Class MA-2
Uncertificated Interests shall be considered to be held in the REMIC IIU
Distribution Account until deemed to be distributed to the Trustee for the
benefit of the Class UA-1, UA-2 and Class UA-2F Uncertificated Interests as set
forth in Section 4.01(a)(ii) and distributed to the Holders of the Class R-IIU
Certificates as set forth in Section 4.01(a)(v) (to the extent such portion of
the Available Distribution Amount, the "REMIC IIU Distribution Amount"). Such
amounts deemed distributed on the Class UA-1, Class UA-2 and Class UA-2F
Uncertificated Interests, together with the amounts distributed on the Class MB,
Class MC, Class MD, Class ME, Class MF, Class MG, Class MH, Class MJ and Class
MX Uncertificated Interests shall be considered to be held in the REMIC III
Distribution Account until deemed to be distributed on the Class A-2F Regular
Interest as set forth in Section 4.01(b) and distributed to the Holders of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G and
Class X Certificates and the Class R-III Certificates as set forth in Section
4.01(b) (to the extent of such portion of the Available Distribution Amount, the
"REMIC III Distribution Amount"). Such amounts deemed distributed on the Class
A-2F Regular Interest shall be considered to be held in the Floating Rate
Account until distributed in accordance with the provisions of Section 4.01(k).
(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 LB, Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH and Class LJ Uncertificated Interests) or the Corresponding
Certificates (in the case of the Class LK, Class LL, Class LM, Class LN,
Class LO and Class LP Uncertificated Interest taken together with their
related Components of the Class MX Uncertificated Interest) (2) on each of
the Class MA-1 and Class MA-2 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 IIU Regular Interests, allocated between them as specified in the
definition of "Uncertificated Principal Balance" and (3) on each of the
Class UA-1, Class UA-2, Class UA-2F, Class MB, Class MC, Class MD, Class
ME, Class MF, Class MG, Class MH and Class MJ will be identical to such
principal amounts, allocations, reimbursements and timing and amount of
distributions on the Class A-1 and Class A-2 Certificates, the Class A-2F
Regular Interest and the Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J 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)(iv) 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)(iv) and distributions on the Unaffected Certificates
pursuant to Section 4.01(b) and Sections 4.01(c)(i) 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 IIU Distribution
Account on each Distribution Date after distribution of the REMIC IIU
Distribution Amount and Prepayment Premiums allocable to the REMIC IIU
Interests pursuant to Section 4.01(a)(i) and Section 4.01(c)(iv) shall be
distributed to the Holders of the Class R-IIU Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the REMIC IIU Distribution Account, if any).
(b) each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall make
distributions to the REMIC III Certificates, the Class A-2F Regular Interest and
the Unaffected Certificates in the following priority (deemed, in the case of
the REMIC III Certificates and the Class A-2F Regular Interest, to be made from
the REMIC III Distribution Account, and in the case of the Unaffected
Certificates, to be made from the REMIC II Distribution Account):
(i) to distributions of interest to Holders of the Class A-1
Certificates, the Class A-2 Certificates and the Class X Certificates and
the Class A-2F Regular Interest, pro rata, in accordance with the
respective amounts of Distributable Certificate Interest payable in
respect of such Classes described in this clause (i), in an amount equal
to 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 distributions of principal sequentially, first to the
Holders of the Class A-1 Certificates and second, pro rata, to the Holders
of the Class A-2 Certificates and Class A-2F Regular Interest in each
case, in an amount (not to exceed the Class Principal Balance of such
Class of outstanding immediately prior to such Distribution Date) equal to
the remaining Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class A-1 Certificates,
Class A-2 Certificates and Class A-2F Regular Interest, 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 the Class Principal Balance of such
Classes and for which no reimbursement has previously been paid;
(iv) 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;
(v) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates and Class A-2F Regular Interest 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;
(vi) 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;
(vii) 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;
(viii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest 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;
(ix) 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;
(x) 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;
(xi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates 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;
(xii) 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;
(xiii) 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;
(xiv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates 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;
(xv) 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;
(xvi) 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;
(xvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates 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;
(xviii) 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;
(xix) 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;
(xx) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates 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;
(xxi) 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;
(xxii) 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 Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates 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 Balance of
the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxiv) 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 Balance of the Class H Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class J
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;
(xxvi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, in an amount (not to exceed the
Class Principal Balances of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balances of the Class J Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxviii) 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;
(xxix) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J 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;
(xxx) 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;
(xxxi) 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;
(xxxii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates 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;
(xxxiii) 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;
(xxxiv) 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;
(xxxv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates 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;
(xxxvi) 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;
(xxxvii) 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;
(xxxviii)if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and 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;
(xxxix) 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 N Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xl) to distributions of interest to the Holders of the Class O
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;
(xli) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class O Certificates, in
an amount (not to exceed the Class Principal Balance of the Class O
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xlii) to distributions to the Holders of the Class O
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 O Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xliii) to distributions of interest to the Holders of the Class
P 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;
(xliv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2F Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class O
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class P Certificates, in an amount (not to exceed the
Class Principal Balance of the Class P Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xlv) to distributions to the Holders of the Class P
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 P Certificates and
that remain unreimbursed immediately prior to such Distribution Date; and
(xlvi) to distributions to the Holders of the Class R-III
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)
above, will be so made to the Holders of the Class A-1 Certificates, Class A-2
Certificates and Class A-2F Regular Interest 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, 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 (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii),
(xxvi), (xxix), (xxxii), (xxxv), (xxxvii), (xli) and (xliv) 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 the Class A-1
Certificates, the Class A-2 Certificates and the Class A-2F Regular Interest
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 (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli) and
(xliv) 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
during the related Collection Period will be distributed by the Trustee to the
following Classes: to the Class A-1 Certificates, Class A-2 Certificates, Class
A-2F Regular Interest, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G Certificates,
and Class H 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-1 Certificates, Class A-2 Certificates, Class A-2F
Regular Interest, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G Certificates,
Class H Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class O Certificates
and Class P 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 Collection Period.
Any Prepayment Premiums collected during the related Collection Period remaining
after such distributions will be distributed to the holders of the Class X
Certificates.
(ii) The "Base Interest Fraction" with respect to any principal
prepayment on any Mortgage Loan and with respect to any Class of Regular
Certificates (other than the Class A-2F Certificates) and the Class A-2F
Regular Interest 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.
(iii) No Prepayment Premiums charges will be distributed to the
holders of the Class J, Class K, Class L, Class M, Class N, Class O or
Class P Certificates. After the Certificate Principal Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates and the Class
A-2F Regular Interest have been reduced to zero, all Prepayment Premiums
and yield maintenance charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class X Certificates.
(iv) All distributions of Prepayment Premiums made in respect of
the respective Classes of Regular Certificates on each Distribution Date
pursuant to Section 4.01(c)(i) 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 Interest for such Distribution Date pursuant to
Section 4.01(a)(i) above. The amount of Prepayment Premiums distributable
(A) on the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G and Class H Certificates and the Class A-2F Regular Interest
shall be distributed, (1) from REMIC II to REMIC IIU in respect of the
Class MA-1 and Class MA-2 Uncertificated Interests, (2) from REMIC II to
REMIC III in respect of the Class MB, Class MC, Class MD, Class ME, Class
MF, Class MG, Class MH and Class MJ Uncertificated Interests, (3) from
REMIC IIU to REMIC III in respect of the Class UA-1, Class UA-2 and Class
UA-2F Uncertificated Interests, in each case based on the amount
distributable on the Corresponding Certificates. The amount of Prepayment
Premiums distributable on the Class X Certificates shall be deemed to be
distributed from REMIC II to REMIC IIU in respect of the Class MA-1 and
Class MA-2 Uncertificated Interests and from REMIC II to REMIC III in
respect of the remaining REMIC II Uncertificated Regular Interests, pro
rata, and the amounts so allocated in respect of the Class MA-1 and Class
MA-2 Uncertificated Interests shall be deemed to be distributed from REMIC
IIU to REMIC III in respect of the REMIC IIU Regular Interests, pro rata,
in each such case based upon the amount of interest distributed thereon
for such Distribution Date pursuant to Section 4.01(a)(ii), it being
understood that the amount so allocated in respect of the Class X
Certificates shall be equal to the amount of Prepayment Premiums
remaining, after allocations to the Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates and the
Class A-2F Regular Interest in accordance with Section 4.01(c)(i) (which
remaining amount shall be the entire amount so distributable after the
Class Principal Balances of such Classes of Certificates and the Class
A-2F Regular Interest have been reduced to zero).
(v) For so long as the Swap Documents are in effect, the
Prepayment Premiums allocated to the Class A-2F Regular Interest shall be
payable to the Swap Counterparty pursuant to the terms of the Swap
Documents. If the Swap Documents are no longer in effect, any Prepayment
Premiums allocable to the Class A-2F Regular Interest shall be distributed
to the Class A-2F Certificates.
(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-III 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.
(i) On each Distribution Date, any Excess Interest received during
the related Collection Period with respect to the Mortgage Loans shall be
distributed to the holders of the Class V Certificates.
(j) All payments made on the Loan REMIC Loans or any related
subsequently acquired REO Property (other amounts distributable to the Loan
REMIC Residual Interests in accordance with the Loan REMIC Declarations) shall
be deemed to be paid to REMIC I before payments are made to the holder of the
REMIC I Regular Interests, and shall be treated as principal, interest, or
Prepayment Premiums, as the case may be, based on these characterizations with
respect to the Loan REMIC Loans (or REO Property), except where expressly noted
and, in addition, any payment of principal on or reduction in the Stated
Principal Balance of the Loan REMIC Loans shall reduce the principal balance of
the related Loan REMIC Regular Interest. Any payments on or with respect to the
Loan REMIC Loans in excess of the principal, interest and Prepayment Premiums
distributable on the Loan REMIC Regular Interests shall be distributable to the
Class R-I Certificates in respect of amounts distributed on the Loan REMIC
Residual Interests. Servicing Fees and Trustee Fees with respect to the Loan
REMIC Loans shall be paid by REMIC I in respect of the related Loan REMIC
Regular Interests, and all other servicing compensation with respect to the Loan
REMIC Loans payable to the Master Servicer or the Special Servicer shall be
payable by the Loan REMICs, except as provided in Section 3.05(a).
(k) On each Master Servicer Remittance Date, the Trustee shall
distribute from the Floating Rate Account to the Swap Counterparty the Net Swap
Payment, pursuant to Section 3.28(b). On each Distribution Date, the Trustee
shall distribute the Class A-2F Available Funds for such Distribution Date from
the Floating Rate Account to the Holders of record of the Class A-2F
Certificates as of the related Record Date in the following amounts: (i) the
Class A-2F Interest Distribution Amount, and (ii) the Class A-2F Principal
Distribution Amount. For so long as the Swap Documents are in effect, any
Prepayment Premium paid on the Class A-2F Regular Interest shall be payable to
the Swap Counterparty pursuant to the terms of the Swap Documents.
For as long as a Swap Default has occurred and the Class A-2F
Certificates are receiving the Fixed Interest Distribution, the Class A-2F
Certificates shall accrue interest on the same basis and in the same manner as
the Class A-2F Regular Interest.
If in the connection with a Swap Default and the conversion of the
Class A-2F Pass Through Rate to a fixed interest rate, there is insufficient
time for the Depository to make such change in payment terms to the Class A-2F
Certificates, a delay in making a distribution of interest to the holders of the
Class A-2F Certificates may result. Under such circumstances, the Trustee shall
not be liable or otherwise responsible for such delay.
If at any time the Swap Documents become subject to early
termination due to the occurrence of an event of default or a termination event
thereunder, the Trustee shall promptly provide written notice to the Holders of
the Class A-2F Certificates and shall take such actions (following the
expiration of any applicable grace period), unless directed in writing by the
Certificateholders evidencing, in the aggregate, not less than 25% of the Voting
Rights of the Class A-2F Certificates, to enforce the rights of the Trust under
the Swap Documents as may be permitted by the terms of the Swap Documents and
consistent with the terms hereof, and shall apply the proceeds of any such
actions (including, without limitation, the proceeds of the liquidation of any
collateral pledged by the Swap Counterparty) to enter into a replacement
interest rate swap agreement on substantially identical terms or on such other
terms reasonably acceptable to the Trustee as each Rating Agency may confirm in
writing that such action will not result in a qualification, downgrade or
withdrawal of the then-current ratings of the Certificates. If the costs
attributable to entering into a replacement interest rate swap agreement will
exceed the sum of the net proceeds of the liquidation of the Swap Documents, a
replacement interest rate swap agreement shall not be entered into. Prior to the
application of any proceeds in accordance with the terms of this paragraph, such
proceeds shall be deposited in a segregated trust account, which shall be an
Eligible Account, established by the Trustee and identified as held in trust for
the benefit of the Certificateholders of the Class A-2F Certificates. Any
proceeds of the liquidation of the Swap Documents which exceed the costs,
including the reasonable out-of-pocket expenses of the Trustee which shall be
paid from such proceeds, attributable to entering into a replacement interest
rate swap agreement (or if no replacement interest rate swap agreement is
entered into) shall be deposited into the Floating Rate Account and shall be
distributed, pro rata, to the holders of the Class A-2F Certificates. Any
termination payments due to the Swap Counterparty under the Swap Contract shall
be payable solely from a portion, if any, of the Fixed Interest Distribution
remaining after all other amounts have been paid under the Class A-2F Regular
Interest (including all principal amounts outstanding).
The Trustee shall be entitled to conclusively rely on the report
from the Swap Counterparty that specifies LIBOR for any Interest Accrual Period,
provided that the Trustee shall calculate and confirm the calculation of LIBOR
with respect to each Distribution Date.
(l) In the event that the Swap Documents are terminated and there is
no replacement, the Trustee shall provide notice of such termination to the
Class A-2F Certificateholders as follows: "The Swap Documents with respect to
the Class A-2F Certificates are terminated as of [date]. Certificateholders and
Beneficial Owners that are Plans are advised that the Exemption will no longer
apply to the Class A-2F Certificates, effective 60 days after the receipt of
this notice. All capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing 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 Rating Agencies a statement (a "Distribution Date
Statement"), substantially in the form contemplated on pages C-1 through C-17 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 a 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 and,
following the occurrence of a Swap Default, notification that the amount
of interest (the Class A-2F Regular Interest Distributable Certificate
Interest) distributed on the Class A-2F Certificates is the respective
Fixed Interest Distribution which is being paid as a result of a Swap
Default;
(xi) any unpaid Distributable Certificate Interest in respect of
each Class of 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 Principal 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 and cumulative outstanding Advances;
(xx) current Prepayments;
(xxi) the number and aggregate principal balance of Mortgage
Loans as to which foreclosure proceedings have been commenced as to the
related Mortgaged Property;
(xxii) the ratings from all Rating Agencies for all classes of
Certificates;
(xxiii) LIBOR as calculated for the related Distribution Date;
(xxiv) the amounts received and paid in respect of the Swap
Documents;
(xxv) identification of any Rating Agency Trigger Event or Swap
Default of which the Trustee has received notice as having occurred as of
or prior to the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Documents;
(xxvi) following the occurrence of a Swap Default, the amount of
any (A) payment to any successor interest rate swap counterparty to
acquire a replacement interest rate swap agreement, and (B) collateral
posted in connection with any Rating Agency Trigger Event; and
(xxvii) the amount of and identification of any payments on the
Class A-2F Certificates in addition to the amount of principal and
interest due thereon, such as any payment received in connection with the
Swap Documents or any payment of a Yield Maintenance Charge after the
termination of the Swap Contract required to be distributed on the Class
A-2F Certificates pursuant to the terms of this Agreement.
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 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 Operating Income 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) Historical Liquidation Report, (v) Comparative Financial Status
Report, (vi) Servicer Watch List Report, (viii) CMSA Loan Periodic Update File,
(ix) CMSA Property File, and (x) CMSA Financial File (such six supplemental
reports and four data files, 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. In addition, each Mortgage
Loan seller shall prepare (or cause to be prepared on its behalf) a CMSA Loan
Set-Up File.
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 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-IIU and Class R-III
Certificates the 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-IIU and Class
R-III Certificates may reasonably request.
The Trustee will make available each month, to any interested party,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to any interested party each month the Servicer
Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File on the
Trustee's Website. The Distribution Date Statement will also be available on the
Trustee's fax-on-demand service, which may be accessed by calling (301)
815-6610. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. For assistance with the above-referenced services, interested parties
may call (301) 815-6600. The Trustee will make no representations or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) The Master Servicer shall deliver or cause to be delivered to
the Trustee, the Directing Certificateholder, the Special Servicer and each
Rating Agency (which delivery to the Special Servicer, the Directing
Certificateholder and each Rating Agency may be accomplished by making such
information available on the Master Servicer's Internet Website), on a
computer-readable medium, in form reasonably acceptable to the Trustee,
including, without limitation, on a loan-by-loan basis, (A) at or before 1:00
p.m. (New York City time) on the first Business Day prior to the related
Distribution Date beginning in June, 2001, the Servicer Reports and the Special
Servicer Loan Status Report delivered to the Master Servicer by the Special
Servicer (excluding the CMSA Loan Periodic Update File) (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 as provided by the Special Servicer), and
(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 June, 2001, the CMSA Loan Periodic Update File (the "CMSA Loan
Periodic Update File").
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 such calendar month, 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, 2002, but excluding each first calendar quarter
thereafter, within 105 days (or 180 days, in the case of annual year end
operating information, commencing with year end 2001) of receipt by the Master
Servicer, as to non-Specially Serviced Mortgage Loans, or within 30 days after
receipt by the Special Servicer, as to Specially Serviced Mortgage Loans, of any
annual, quarterly or other periodic operating statements or rent rolls with
respect to any Mortgaged Property or REO Property, the Master Servicer (or the
Special Servicer, as applicable), shall, upon the request of the Trustee,
deliver to the Trustee imaged copies of such operating statements and rent
rolls. Based upon such operating statements or related rent rolls, the Master
Servicer (based upon operating statements, rent rolls, written reports and data
fields collected or prepared by the Special Servicer pursuant to Section 3.12(b)
and furnished to the Master Servicer by the Special Servicer in the case of the
Specially Serviced Mortgage Loans), shall prepare (or, if previously prepared,
update, inclusive of year-to-date data) a written analysis of the operations of
the Mortgaged Property or REO Property, by completing an Operating Statement
Analysis Report, together with an NOI Adjustment Worksheet for annual year-end
operating statements and related rent rolls. All Operating Statement Analysis
Reports and NOI Adjustment Worksheets shall be maintained by the Master Servicer
with respect to each Mortgaged Property and REO Property. The Master Servicer
shall deliver imaged copies thereof, upon request, to the Trustee, the Rating
Agencies, the Directing Certificateholder and 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 statements or related rent rolls. Each Operating Statement
Analysis Report shall be substantially in the form of Exhibit I attached hereto
and each NOI Adjustment Worksheet shall be substantially in the form of Exhibit
K attached hereto. Each Operating Statement Analysis Report and NOI Adjustment
Worksheet shall be prepared using normalized year-to-date CMSA methodology as in
effect from time to time.
The Special Servicer, on the fourth (4th) Business Day (for delivery
on such date) prior to each Distribution Date, shall forward to the Master
Servicer all information, data or reports collected or delivered by the Special
Servicer which the Master Servicer is required to include in its preparation of
the Servicer Reports. Further, the Master Servicer shall cooperate with the
Special Servicer and provide the Special Servicer with the information in the
possession of the Master Servicer reasonably requested by the Special Servicer,
in writing, to the extent required to allow the Special Servicer to perform its
obligations under this Agreement with respect to those Mortgage Loans serviced
by the Master Servicer.
No later than 1:00 p.m., New York City time, on the Master Servicer
Remittance Date, beginning in July, 2001, 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"), substantially in the form of Exhibit J attached hereto.
For this purpose, Mortgage Loans that are in jeopardy of becoming Specially
Serviced Mortgage Loans shall include, without limitation: (i) Mortgage Loans
having a normalized Debt Service Coverage Ratio that is less than 1.05x, (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 (or tenants
collectively) 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 60 days delinquent in payment,
(v) Mortgage Loans that are within 3 months of maturity, (vi) Mortgage Loans
that have been delinquent in the payment of principal and/or interest three
times in the immediately preceding 12 month period, (vii) Mortgage Loans as to
which there is a delinquency in the payment of real estate taxes, ground rents
(to the extent notification is received from the ground lessor), and assessments
or similar items to the extent escrows have been established for such items and
the escrows are monitored by the Master Servicer, and (viii) Mortgage Loans as
to which insurance on the related Mortgaged Property has lapsed.
The Master Servicer shall use its reasonable efforts to notify the
Rating Agencies in a timely manner of any change in the identity of either the
two largest tenants of any retail Mortgaged Property and any casualty at or
condemnation proceeding with respect to any 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 produce the Servicer Reports 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 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. (215) 328-3478 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (215) 328-1258 (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 11:00 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. Neither the
Master Servicer nor the Trustee shall advance any amount due to be paid by the
Swap Counterparty for distribution to the Class A-2F Certificates in the event
that the Swap Counterparty fails to make a required payment.
(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 (net of the Standby
Fee) 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 Business
Day before the Master Servicer Remittance Date; 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; and provided, further, that the Master Servicer shall not be
required to advance Excess Interest with respect to ARD Loans.
(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 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 out of general collections. The Trustee shall be
entitled to rely on any determination of nonrecoverability that may have been
made by the Master 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 in the case of Specially Serviced Mortgage Loans.
(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), 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). Such interest will be paid: first, out of any Default
Interest collected on or in respect of the related Mortgage 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 P, Class O, Class N, Class
M, Class L, Class K, Class J, 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-1 Certificates, Class A-2
Certificates and Class A-2F Regular Interest 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 (other than the Class A-2F Certificates) and Class A-2F Regular
Interest 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-1 and Class A-2 Certificates and Class A-2F Regular
Interest pursuant to Section 4.04(a) with respect to such Distribution Date
shall reduce the Uncertificated Principal Balances of the Class UA-1, Class UA-2
and Class UA-2F Uncertificated Interests as a write-off and shall be allocated
pro rata among such REMIC IIU Regular Interests; (ii) any Realized Losses
allocated to the Class UA-1, Class UA-2 and Class UA-2F Uncertificated Interests
pursuant to clause (i) with respect to such Distribution Date shall reduce the
Uncertificated Principal Balances of the Class MA-1 and Class MA-2
Uncertificated Interests as a write-off and shall be allocated pro rata between
such REMIC II Uncertificated Regular Interests in accordance with their
Uncertificated Principal Balances; (iii) any Realized Losses allocated to the
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
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,
Class MD, Class ME, Class MF, Class MG, Class MH and Class MJ Uncertificated
Interests, respectively, as a write-off; (iv) 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 LB, Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class LO and Class
LP Uncertificated Interests in the same priority as its Class of Corresponding
REMIC II Uncertificated Regular Interests pursuant to clauses (ii) and (iii) or
Class of Corresponding Certificates pursuant to Section 4.04(a).
SECTION 4.05 Interest Reserve Account.
The Trustee shall establish and maintain the Interest Reserve
Account in the Trustee's name for the benefit of the Certificateholders. The
Interest Reserve Account shall be established and maintained as an Eligible
Account, which the Trustee 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 Trustee shall withdraw from
the Distribution Account, in respect of each Mortgage Loan which accrues
interest on an Actual/360 Basis, and, in the case of the Loan REMIC Loans, the
Loan REMIC Regular Interests, and deposit into the Interest Reserve Account, an
amount equal to one day's interest at the related 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, 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 the Master Servicer Remittance Date in March of each calendar
year, the Trustee shall transfer to the Distribution Account the aggregate of
all Withheld Amounts on deposit in the Interest Reserve Account.
SECTION 4.06 Excess Interest Distribution Account.
The Trustee for the benefit of the Certificateholders, shall
establish and maintain the Excess Interest Distribution Account in trust for the
benefit of the Certificateholders. The Excess Interest Distribution Account
shall be established and maintained as an Eligible Account, which the Trustee
may (but shall not be obligated to) invest only in Permitted Investments in
accordance with Section 3.06. Prior to the applicable Distribution Date, the
Master Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
applicable Collection Period. Following the distribution of Excess Interest to
Class V Certificateholders on the first Distribution Date after which there are
no longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
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-23; 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 J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates will be issuable in denominations
corresponding to initial Certificate Principal Balances or Certificate Notional
Amounts, as the case may be, as of the 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-1, Class A-2, and Class A-2F
Certificates will be issuable in denominations corresponding to initial
Certificate Principal Balances (or initial Certificate Notional Amount as the
case may) as of the Sequel Closing Date of not less than $10,000, the Class B,
Class C, Class D, Class E, Class F, Class G and Class H 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 different denomination. Each Class of
Residual Certificates and Class V 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 as of the Original Closing Date or the
Sequel Closing Date shall, in any event, be dated as of the Original Closing
Date or the Sequel Closing Date.
(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 ERISA Restricted Certificates, Class V
Certificates and Residual 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 Class V Certificate or 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 Class V and Residual Certificates (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 Placement Agent, Underwriters 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, with respect to the
ERISA Restricted Certificates, the Opinions of Counsel or other certification
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 Placement
Agent, Underwriters, the Certificate Registrar or and the Trust Fund. To the
extent the purchase or holding of a Certificate described in this Section
5.02(c) would be restricted by ERISA, the Code or Similar Law, each Certificate
Owner of such 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 will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the 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 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, 2002, 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-1, Class A-2, Class A-2F, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class X Certificates (as of the
Sequel Closing Date), and the Class K, Class L, Class M and Class N, Class O and
Class P 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 J, Class K, Class L, Class M, Class N, Class O and Class P 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 R-I, Class R-II, Class R-IIU, and Class R-III
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 SELLERS, THE MASTER SERVICER, THE
SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer and the REMIC Administrator.
The Depositor, the Mortgage Loan Sellers, 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 Sellers, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Sellers, the Master Servicer, the Special Servicer or the
REMIC Administrator.
Subject to the following paragraph, the Depositor, the Mortgage Loan
Sellers, 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 Sellers, 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 Sellers, 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
Sellers, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Mortgage Loan Sellers, 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 Sellers, 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 reckless 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, including reasonable attorneys' fees, expenses of
counsel and expenses of litigation, incurred in connection with any claims or
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); or (ii) 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
recklessness 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 most recent financial statements,
and such other information directly related to the servicing of the Mortgage
Loans or to its ability to perform its obligations hereunder as it possesses,
and which it is not prohibited by law or, to the extent applicable, binding
obligations to third parties with respect to confidentiality from disclosing,
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 any amount required to be so deposited under this
Agreement which continues unremedied for two (2) Business Days following
the date on which such deposit was first required to be made, but in no
event later than one (1) day before the related Distribution Date, or (B)
to deposit into, or 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 which remains uncured by 11:00 a.m. on the following Business
Day provided however, that in connection with any failure of the Master
Servicer to remit to the Trustee any amount for deposit into the
Distribution Account when required pursuant to this Agreement
(notwithstanding the previous clause (B)) the Master Servicer shall pay to
the Trustee for the account of the Trustee interest on any amount not
timely remitted at the Prime Rate from and including the day such
remittance was required to be made to, but not including, the day on which
such remittance was actually made; or
(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 which is not cured by 11:00 a.m. New York City time on the
Distribution 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 ending on the earlier of
(A) 15 days following the date such Servicing Advance was first required
to be made, and (B) either, if applicable, (1) in the case of a Servicing
Advance relating to the payment of insurance premiums, the day on which
such insurance coverage terminates if such premiums are not paid or (2) in
the case of a Servicing Advance relating to the payment of real estate
taxes, the date of the commencement of a foreclosure action with respect
to the failure to make such payment; or
(v) any failure by the Special Servicer to timely direct the
Master Servicer to make any Servicing Advance (including any Emergency
Advance) required to be made by 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 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; 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
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 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 60 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) the Master Servicer or the Special Servicer (as the case
may be) receives actual knowledge that (i) Moody's has qualified,
downgraded or withdrawn its rating or ratings on one or more Classes of
Certificates, or (ii) that Moody's has placed one or more Classes of
Certificates on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn by Moody's within 60 days of the date the Master Servicer or
Special Servicer (as the case may be ) obtained such actual knowledge), in
the case of either of clauses (i) or (ii), citing servicing concerns with
the Master Servicer or the Special Servicer (as the case may be) as the
sole or material factor in such action; or
(xiii) the Trustee shall have received a written notice from
Fitch (which the Trustee shall promptly forward to the Master Servicer or
the Special Servicer, as applicable), that the continuation of the Master
Servicer or the Special Servicer in such capacity would result in the
downgrade, qualification or withdrawal of any rating the assigned by Fitch
to any Class of Certificates.
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 Event of Defaults 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 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.
(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 (i) survive
any resignation or removal of the Trustee and appointment of a successor trustee
and (ii) extend to any other role which the Trustee may assume hereunder,
including without limitation REMIC Administrator, Custodian and/or Certificate
Registrar.
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 Fitch (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 Sellers, the Master Servicer, the Special Servicer, the Swap
Counterparty, 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 Sellers, the Master Servicer, the Special Servicer, the Swap
Counterparty, 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 Sellers, 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 Sellers, 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
Sellers, 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 Sellers,
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
Sellers 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 Closing
Date pursuant to Section 3.13, (B) all accountants' reports delivered to the
Trustee since the 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 Asset Status
Report. 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, 2002 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. The Depositor hereby grants to the Trustee a
limited power of attorney to execute and file each such document (other than the
initial 8-K) 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 or
convertible 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 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 addressed 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 the Loan REMICs (unless
previously terminated), REMIC I, REMIC II, REMIC IIU, and REMIC III 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 or a Loan REMIC 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 or a Loan REMIC, plus (B) the appraised
value of each REO Property, if any, included in REMIC I or a Loan REMIC (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
or a Loan REMIC; 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 to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I or a Loan REMIC 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 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
or a Loan REMIC 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 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 or a Loan
REMIC in accordance with the preceding sentence, the Master 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 or a Loan REMIC.
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 and Prepayment Premiums for such date that is allocable to
payments on the relevant Class in accordance with Section 4.01(b) and Section
4.01(c)(i). Final distributions on the Loan REMIC Regular Interests (unless
previously terminated) and the REMIC I Regular Interests, the REMIC II
Uncertificated Regular Interests, the REMIC IIU Regular Interests and the Class
A-2F Regular Interest shall be made on such date as provided in Section
4.01(a)(i), Section 4.01(c)(iv) and (v), Section 4.01(j) and Section 4.01(k).
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-III 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 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
or the Loan REMICs as provided in Section 9.01, the Trust (and, accordingly, the
Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III) 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
the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III as defined in Section
860F of the Code or cause the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC
III 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III
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 period and at the time of
the making of the final payment on the Loan REMIC Regular Interests and
the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R-I Certificates (in
the case of the Loan REMICs and REMIC I) and the Class R-II Certificates
(in the case of REMIC II) all cash on hand (other than cash retained to
meet claims), and each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III shall terminate at that time.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of the Loan
REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III 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 Loan REMIC
Interests and 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
IIU Regular Interests are hereby designated as the "regular interests" (within
the meaning of Section 860G(a)(1) of the Code), and the Class R-IIU Certificates
are hereby designated as the sole Class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC IIU. The REMIC III
Certificates (other than the Class R-III Certificates) and the Class A-2F
Regular Interest 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. 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-1, Class UA-2, Class MB, Class MC, Class MD, Class ME, Class MF, Class
MG, Class MH, Class MJ and Class MX Uncertificated Interests, and Class MX
Uncertificated Interest represents such "specified portions" of the interest
payments on the Class LK Uncertificated Interest, the Class LL Uncertificated
Interest, the Class LM Uncertificated Interest, the Class LN Uncertificated
Interest, the Class LO Uncertificated Interest and the Class LP Uncertificated
Interest. The Loan REMIC Regular Interests (instead of the related Mortgage
Loans) will be an asset of REMIC I and the Class R-I Certificates shall
represent beneficial ownership of the Loan REMIC Residual Interests. 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 either the Loan REMICs, REMIC I, REMIC
II, REMIC IIU or REMIC III (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 Sequel Closing Date is hereby designated as the "startup day" of
each of REMIC IIU and REMIC III 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 Interest, the
REMIC II Regular Interests, the REMIC IIU Regular Interests, the REMIC III
Certificates (other than the Class R-III Certificates) and the Class A-2F
Regular Interest and the Regular Certificates is May 15, 2028, the Distribution
Date following the latest maturity date of any Mortgage Loan. The "startup day"
of each Loan REMIC shall each be March 29, 2001.
(d) The REMIC Administrator shall administer the Loan REMICs in
accordance with the Loan REMIC Declarations and the REMIC Provisions and shall
comply with and perform all federal and, if applicable, state and local income
tax return and information reporting requirements with respect to such Loan
REMICs, and shall otherwise administer the Loan REMICs in the same manner as
specified for REMIC I, REMIC II, REMIC IIU and REMIC III in this Section 10.01.
The Loan REMIC Loans shall be serviced and administered in accordance with the
provisions of Article III hereof and the Loan REMIC Declarations. The REMIC
Administrator shall maintain separate accounting with respect to the Loan REMICs
sufficient (i) to comply with such return and information reporting
requirements, including quarterly and annual reporting on Schedule Q to Form
1066 to the holders of the Class R-I Certificates with respect to the Loan REMIC
Residual Interests, (ii) to account for the Loan REMIC Regular Interests as
assets of REMIC I, (iii) to pay or cause to be paid any federal, state or local
income tax attributable to the Loan REMICs from payments received on or with
respect to the related Mortgage Loans, and (iv) to cause any payments on the
related Mortgage Loans in excess amounts distributable in respect of the related
Loan REMIC Regular Interests to be distributed in respect of the related Loan
REMIC Residual Interests.
(e) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and
REMIC III 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 the Loan REMICs,
REMIC I, REMIC II, REMIC IIU or REMIC III, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III, and
otherwise act on behalf of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III, 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 the Loan REMICs, REMIC
I, REMIC II, REMIC IIU and REMIC III. 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).
(f) 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III.
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(g) The REMIC Administrator shall perform or cause to be performed
on behalf of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC
III, all reporting and other tax compliance duties that are the responsibility
of each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the 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, REMIC IIU, and REMIC III, 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 Certificates and
REMIC III as to the REMIC III Certificates.
(h) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III 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 either the Loan REMICs, REMIC I, REMIC II,
REMIC IIU and REMIC III 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III, or causing the Loan REMICs, REMIC I, REMIC II, REMIC IIU and
REMIC III 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III to
take any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur. 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.
In the event that any tax is imposed on the Loan REMICs, REMIC I,
REMIC II, REMIC IIU or REMIC III including, without limitation, "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any taxes on
contributions to the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III
after the Startup Day pursuant to Section 860G(d) of the Code, and any other tax
imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (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.
(i) 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 the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III on a calendar year and on an accrual basis. Such records with
respect to REMIC I shall include, for each Distribution Date, 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
Class Principal Balances, the Pass-Through Rates and each category of
distribution on or with respect to the Unaffected Certificates. Such records
with respect to REMIC IIU shall include, for each Distribution Date, the
applicable Uncertificated Principal Balance, REMIC IIU Remittance Rate, and each
category of distribution on or with respect to the REMIC IIU Regular Interests.
Such records with respect to REMIC III shall include for each Distribution Date,
each category of distribution on or with respect to the REMIC III Certificates
and the Class A-2F Regular Interest, their applicable Class Principal Balances
or Class X Notional Amount, Pass-Through Rates and each category of distribution
on or with respect thereto.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to the Loan REMICs, REMIC I, REMIC II, REMIC IIU and
REMIC III 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.
(k) 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 Sellers 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 a Loan REMIC, REMIC I, REMIC II, REMIC IIU and REMIC III, 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) the Loan REMICs, REMIC I, REMIC II, REMIC IIU
and REMIC III to fail to qualify as a REMIC at any time that any Certificates
are outstanding; or (y) the imposition of any tax on the Loan REMICs, REMIC I,
REMIC II, REMIC IIU and REMIC III under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(l) 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 the Loan REMICs, REMIC I, REMIC II,
REMIC IIU and REMIC III will receive a fee or other compensation for services
or, to the extent it is within the control of such Person, permit the Loan
REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code. 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 the Loan
REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
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.
SECTION 10.05 Grantor Trust Administration.
The parties intend that the portions of the Trust Fund consisting of
the Loan REMIC Residual Interests, Excess Interest and the Excess Interest
Distribution Account, the Class A-2F Regular Interest, the Swap Documents and
the Floating Rate Account shall be treated as a "grantor trust" under the Code,
and the provisions thereof shall be interpreted consistently with this
intention. In furtherance of such intention, the Trustee shall file or cause to
be filed annually with the Internal Revenue Service together with Form 1041 or
such other form as may be applicable and shall furnish or cause to be furnished
(i) annually to the Holders of the Class V Certificates, their allocable share
of income with respect to Excess Interest as such amounts accrue or are
received, as the case may be, after the related Anticipated Prepayment Date,
(ii) quarterly to the Holders of the Class R-I Certificates, such information
relating to the Loan REMIC Residual Interests represented thereby as is required
by the REMIC Provisions and (iii) annually to the Holders of the Class A-2F
Certificates their allocable shares of income and expense with respect to the
Class A-2F Regular Interest and the Swap Documents on the accrual method of
accounting.
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 the Loan
REMICs, REMIC I, REMIC II, REMIC IIU and REMIC III 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 the Loan REMICs, REMIC I
or REMIC II; (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 Sellers, 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
Bank of America Mortgage Loans or Bridger 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 J, Class K, Class L, Class M, Class N, Class O and Class P
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 J, Class K, Class L, Class M, Class N, Class O and Class P 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 the Grantor Trust, the Loan REMICs, REMIC
I, REMIC II, REMIC IIU or REMIC III pursuant to the REMIC Provisions or cause
the Grantor Trust or the Loan REMICs, REMIC I, REMIC II, REMIC IIU or REMIC III
to fail to qualify as a Grantor Trust or a REMIC, as applicable, at any time
that any Certificates are outstanding. Furthermore, notwithstanding any contrary
provisions of this Agreement, this Agreement may not be amended in a manner that
would adversely affect the distributions to the Swap Counterparty or the Class
A-2F Certificates, or the rights of the Swap Counterparty under the Swap
Documents or the rights of the holders of the Class A-2F Certificates without
the consent of the Swap Counterparty (which shall not be unreasonably withheld).
(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 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 Dean Roberson, 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 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
Bridger Commercial Realty Finance LLC, 100 Shoreline Highway, Suite 100, Mill
Valley, California 94941, Attention: Robert Schonefeld, Chief Executive Officer,
with a copy to Clayton Gantz, Esq., Steefel, Levitt & Weiss, One Embarcadero
Center, 30th Floor, San Francisco, California 94111; (4) in the case of GMAC
Commercial Mortgage Corporation, 200 Witmer Road, Horsham, PA 19044, Attention:
Managing Director of Commercial Servicing Operations, telecopy number (215)
328-3620; with copy to General Counsel, telecopy number (215) 328-3478; (5) in
the case of Lennar Partners, Inc., 760 N.W. 107th Avenue, Suite 400, Miami,
Florida 33172, Attention: Ronald Schrager, President, telecopy number (305)
226-3428; (6) 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 2001-1, telecopy number (410) 884-2360; (7) 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) Fitch, Inc., One State Street Plaza, New York, New
York 10041, Attention: Commercial Mortgage - Backed Securities, facsimile number
(212) 635-0295; and (8) in the case of the Swap Counterparty, Bank of America,
N.A. Sears Tower, 233 South Wacker Drive, Suite 2800, Chicago, IL 60606,
Attention: Swap Operations; or as to each such Person such other address as may
hereafter be furnished by such Person to the parties hereto in writing 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,
the Swap Counterparty 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 a 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;
(c) Each of the Master Servicer and the Special Servicer, as the
case may be, shall furnish to each Rating Agency such information with respect
to the Mortgage Loans as the Rating Agency shall reasonably request and which
the Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
(d) 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 or
other periodic operating statements and rent rolls collected, by it pursuant to
Section 3.12(b).
(e) 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).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, or a Class J, Class K, Class
L, Class M, Class N, Class O and Class P 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.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
(h) 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 J, Class K, Class L, Class M, Class N,
Class O or Class P Certificate, shall be entitled to, upon request to the Master
Servicer, receive a copy from the Master Servicer, of any notice or report to be
delivered hereunder to the Directing Certificateholder.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, or any Holder of a Class J, Class K, Class L, Class M, Class
N, Class O or Class P 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/: Bruce M. Ambler Jr.
-------------------------------
Name: Bruce M. Ambler Jr.
Title: Vice President
BANK OF AMERICA, N.A.,
Mortgage Loan Seller
By: /s/: Stephen L. Hogue
-------------------------------
Name: Stephen L. Hogue
Title: Vice President
BRIDGER COMMERCIAL REALTY FINANCE LLC
Mortgage Loan Seller
By: /s/: Robert S. Schonefeld
-------------------------------
Name: Robert S. Schonefeld
Title: C.E.O
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
By: /s/: Kathryn Marquardt
-------------------------------
Name: Kathryn Marquardt
Title: Senior Vice President
LENNAR PARTNERS, INC.
Special Servicer
By: /s/: Ronald E. Schrager
-------------------------------
Name: Ronald E. Schrager
Title: Vice President
WELLS FARGO BANK MINNESOTA, N.A.
Trustee and REMIC Administrator
By: /s/: Leslie A. Gaskill
-------------------------------
Name: Leslie A. Gaskill
Title: Vice President
ACKNOWLEDGED AND AGREED WITH RESPECT
TO SECTION 2.03 OF THIS AGREEMENT:
PRUDENTIAL SECURITIES CREDIT CORP., LLC
By: /s/ Anna Caston
----------------------------
Name: Anna Caston
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of June, 2001, before me, a notary public in and for
said State, personally appeared Bruce M. Ambler, Jr. known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. and Stephen L. Hogue known
to me to be a Vice President 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/: Demetria C. Criston
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
January 19, 2003
STATE OF CALIFORNIA )
) ss.:
COUNTY OF MARIN )
On the 25th day of June , 2001, before me, a notary public in and
for said State, personally appeared Robert S. Schonefeld known to me to be the
C.E.O of BRIDGER COMMERCIAL REALTY FINANCE LLC, 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/: Katherine F. Pokas
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 21, 2003
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF MONTGOMERY )
On the 25th day of June , 2001, before me, a notary public in and
for said State, personally appeared Kathryn Marquardt, known to me to be a
Senior Vice President of GMAC COMMERCIAL MORTGAGE CORPORATION, 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 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/: Madeline O'Brien
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
December 13, 2003
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 25th day of June , 2001, before me, a notary public in and
for said State, personally appeared Ronald Schrager, known to me to be a Vice
President of LENNAR PARTNERS, INC., 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/: Jeanine A. Manzano
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
March 2, 2003
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of June, 2001, 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/: Demetria C. Criston
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
January 19, 2003
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
On the 25th day of June , 2001, before me, a notary public in and
for said State, personally appeared Anna Caston, known to me to be a Officer of
PRUDENTIAL SECURITIES CREDIT CORP., LLC 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/: Elizabeth A. McDonough
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
April 28, 2003
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.0860% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class A-1 Certificates as of
the Issue Date: $161,603,149
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
Certificate No. A-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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 A-1 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-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.5030% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class A-2 Certificates as of
the Issue Date: $527,811,659
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
Certificate No. A-2-__ 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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 A-2 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-2F CERTIFICATE
CLASS A-2F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
LIBOR + 0.36% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class A-2F Certificates as
of the Issue Date: $50,000,000
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Delivery Date,
July 16, 2001 after deducting payments of
principal due on or before such
Master Servicer: date (the "Delivery Date Pool
GMAC Commercial Mortgage Corporation Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
Certificate No. A-2F-__ 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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 A-2F 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 X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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 Pooling and
Servicing Agreement: Class Notional Amount of all the
June 1, 2001 Class X Certificates as of the
Issue Date: $948,131,109
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION ,LENNAR PARTNERS, INC. 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 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended and Restated Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Banc of America Commercial Mortgage
Inc., as Depositor, and the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 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-5
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.6740% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class B Certificates as of
the Issue Date: $35,576,642
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 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-6
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.7720% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class C Certificates as of
the Issue Date: $21,345,985
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 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-7
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.8510% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class D Certificates as of
the Issue Date: $18,974,209
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 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-8
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.9680% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Agreement: Class Principal Balance of all
June 1, 2001 the Class E Certificates as of
the Issue Date: $9,487,105
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 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-9
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
7.2240% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and Class Principal Balance of all
Servicing Agreement: the Class F Certificates as of
June 1, 2001 the Issue Date: $9,487,105
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 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-10
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
7.3240% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Class Principal Balance of all
Agreement: June 1, 2001 the Class G Certificates as of
the Issue Date: $18,974,209
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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
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
_________for the account of___________________________.
This information is provided by ____________________________, the
assignee named above, or _______________________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
7.5070% per annum this Certificate as of the
Issue Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Class Principal Balance of all
Agreement: June 1, 2001 the Class H Certificates as of
the Issue Date: $14,230,657
Bond Balance Date: June 1, 2001
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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.
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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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
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
_________for the account of___________________________.
This information is provided by ____________________________, the
assignee named above, or _______________________________________, as its agent.
EXHIBIT A-12
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Amended and Restated Pooling and
Servicing Class Principal Balance of all
Agreement: June 1, 2001 the Class J Certificates as of
the Issue Date:
Bond Balance Date: June 1, 2001 $13,281,946
Issue Date: June 27, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
July 16, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
Certificate No. J-__ 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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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 J 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-13
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Pooling and Servicing
Agreement: May 1, 2001 Class Principal Balance of all
the Class K Certificates as of
Bond Balance Date: May 1, 2001 the Issue Date: $23,480,584
Issue Date: May 30, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
June 15, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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.
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.
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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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 L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Pooling and Servicing
Agreement: May 1, 2001 Class Principal Balance of all
the Class L Certificates as of
Bond Balance Date: May 1, 2001 the Issue Date: $2,134,598
Issue Date: May 30, 2001 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Delivery Date,
June 15, 2001 after deducting payments of
principal due on or before such
Master Servicer: date (the "Delivery Date Pool
GMAC Commercial Mortgage Corporation Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-15
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Pooling and Servicing
Agreement: May 1, 2001 Class Principal Balance of all
the Class M Certificates as of
Bond Balance Date: May 1, 2001 the Issue Date: $5,538,842
Issue Date: May 30, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
June 15, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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 N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Pooling and Servicing
Agreement: May 1, 2001 Class Principal Balance of all
the Class N Certificates as of
Bond Balance Date: May 1, 2001 the Issue Date: $6,788,329
Issue Date: May 30, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
June 15, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
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 BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-17
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Pooling and Servicing
Agreement: May 1, 2001 Class Principal Balance of all
the Class O Certificates as of
Bond Balance Date: May 1, 2001 the Issue Date: $5,883,218
Issue Date: May 30, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
June 15, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
Certificate No. O- 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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 O 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-18
FORM OF CLASS P CERTIFICATE
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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
6.1250% per annum this Certificate as of the Issue
Date:
$--------------
Date of Pooling and Servicing
Agreement: May 1, 2001 Class Principal Balance of all
the Class P Certificates as of
Bond Balance Date: May 1, 2001 the Issue Date: $23,532,872
Issue Date: May 30, 2001 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Delivery
June 15, 2001 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Delivery Date
GMAC Commercial Mortgage Corporation Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
Certificate No. P- 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., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 P 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-19
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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 Pooling and Servicing Certificate No. R-I-___
Agreement: May 1, 2001
Percentage Interest evidenced by
Bond Balance Date: May 1, 2001 this Certificate in the related
Class: 100%
Issue Date: May 30, 2001
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
June 15, 2001 Mortgage Pool as of the Delivery
Date, after deducting payments
Master Servicer: of principal due on or before
GMAC Commercial Mortgage Corporation such date (the "Delivery Date
Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Banc of
America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan Sellers,
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 or partnership (except to the extent provided in
applicable Treasury regulations) created or organized in, or under the laws of,
the United States, any state or the District of Columbia, including any 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 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED FOR,
OR ISSUED IN EXCHANGE FOR OR
UPON TRANSFER OF, AN INTEREST REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-20
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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 Pooling and Servicing Certificate No. R-II - __
Agreement: May 1, 2001
Bond Balance Date: May 1, 2001 Percentage Interest evidenced by
this Certificate in the related
Issue Date: May 30, 2001 Class: 100%
First Distribution Date: Approximate Aggregate unpaid
June 15, 2001 principal balance of the
Mortgage Pool as of the Delivery
Master Servicer: Date, after deducting payments
GMAC Commercial Mortgage Corporation of principal due on or before
such date (the "Delivery Date
Pool Balance"): $948,710,454
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Banc of
America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan Sellers,
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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED FOR,
OR ISSUED IN EXCHANGE FOR OR
UPON TRANSFER OF, AN INTEREST REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-21
FORM OF CLASS R-IIU CERTIFICATE
CLASS R-IIU COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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 Amended and Restated Pooling and Certificate No. R-IIU-___
Servicing Agreement: June 1, 2001
Percentage Interest evidenced by
Bond Balance Date: June 1, 2001 this Certificate in the related
Class: 100%
Issue Date: June 27, 2001
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
July 16, 2001 Mortgage Pool as of the Delivery
Date, after deducting payments
Master Servicer: of principal due on or before
GMAC Commercial Mortgage Corporation such date (the "Delivery Date
Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Banc of
America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan Sellers,
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 or partnership (except to the extent provided in
applicable Treasury regulations) created or organized in, or under the laws of,
the United States, any state or the District of Columbia, including any 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 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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-IIU 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-22
FORM OF CLASS R-III CERTIFICATE
CLASS R-III COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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 Amended and Restated Pooling and Certificate No. R-III-___
Servicing Agreement: June 1, 2001
Percentage Interest evidenced by
Bond Balance Date: June 1, 2001 this Certificate in the related
Class: 100%
Issue Date: June 27, 2001
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
July 16, 2001 Mortgage Pool as of the Delivery
Date, after deducting payments
Master Servicer: of principal due on or before
GMAC Commercial Mortgage Corporation such date (the "Delivery Date
Pool Balance"): $948,131,109
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank Minnesota, N.A.
Mortgage Loan Sellers:
Bank of America, N.A.
Bridger Commercial Realty Finance LLC
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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 Amended and Restated Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Banc of
America Commercial Mortgage Inc., as Depositor, and the Mortgage Loan Sellers,
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 or partnership (except to the extent provided in
applicable Treasury regulations) created or organized in, or under the laws of,
the United States, any state or the District of Columbia, including any 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 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 Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 IIU 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
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED FOR,
OR ISSUED IN EXCHANGE FOR OR
UPON TRANSFER OF, AN INTEREST REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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-23
FORM OF CLASS V CERTIFICATE
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2001-1
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 Pooling and Servicing Percentage Interest evidenced by this
Agreement: May 1, 2001 Certificate in the related Class: 100%
Bond Balance Date: May 1, 2001 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Issue Date: May 30, 2001 Delivery Date, after deducting
payments of principal due on or before
First Distribution Date: such date (the "Delivery Date Pool
June 15, 2001 Balance"): $948,710,454
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation Wells Fargo Bank Minnesota, N.A.
Special Servicer:
Lennar Partners, Inc. Mortgage Loan Sellers:
Bank of America, N.A.
Certificate No. V-__ Bridger Commercial Realty Finance LLC
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., BRIDGER COMMERCIAL
REALTY FINANCE LLC, WELLS FARGO BANK MINNESOTA, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, LENNAR PARTNERS, INC. 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 AN INVESTMENT REPRESENTATION LETTER.
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.
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 PREPAYMENT PREMIUMS RECEIVED ON THE
MORTGAGE POOL AS PROVIDED IN THE AGREEMENT.
This certifies that [_________] 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 Amended
and Restated Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Mortgage Loan Sellers, 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Mortgage Loan Sellers, 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 Sellers, 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 Sellers) 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 Sellers, 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
Sellers, 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 V 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 REMAINING PRINCIPAL NOTATION
DATE IN THIS BOOK-ENTRY CERTIFICATE AMOUNT OF BOOK-ENTRY CERTIFIATE 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 B
FORM OF INVESTMENT REPRESENTATION LETTER
Wells Fargo Bank Minnesota, N.A.,
Wells Fargo Center
Sixth & Marquette
Minneapolis, MN 55497
Attn: Corporate Trust Services (CMBS) -Banc of America Commercial
Mortgage Inc. 2001-1-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 2001-1
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Amended and
Restated Pooling and Servicing Agreement dated as of June 1, 2001 (the "Amended
and Restated Pooling and Servicing Agreement"), by and among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A. and Bridger
Commercial Realty Finance LLC, as Mortgage Loan Sellers, GMAC Commercial
Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as Special
Servicer, and Wells Fargo Bank Minnesota, N.A., as Trustee on behalf of the
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1 (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
Amended and Restated 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 Amended and Restated 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
Amended and Restated Pooling and Servicing Agreement.
7. Check one of the following:*
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* Each Purchaser must include one of the two alternative certifications.
|_| 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. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to
be withheld by the Bond Registrar (or its agent) with respect
to distributions to be made on the Bond(s). The Purchaser has
attached hereto either (i) a duly executed IRS Form W-8BEN (or
successor form), which identifies such Purchaser as the
beneficial owner of the Bond(s) and states that such Purchaser
is not a U.S. Tax Person or (ii) two duly executed copies of
IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Bond(s) and state
that interest on the Bond is, or is expected to be,
effectively connected with a U.S. trade or business. The
Purchaser agrees to provide to the Bond Registrar updated IRS
Forms W-8BEN or IRS Forms W-8ECI, as the case may be, any
applicable successor IRS forms, or such other certificates as
the Bond 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 Bond 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 or partnership (except to
the extent provided in applicable Treasury regulations) created or organized in
or under the laws of the United States, any state or the District of Columbia,
including any entity treated as a corporation or partnership for federal income
tax purposes, 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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** 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. Class, R-[I] [II] [IIU] [III] Commercial Mortgage
Pass-Through Certificate, Series 2001-1, evidencing a ____% Percentage Interest
in the Class to which it belongs (the "Residual Certificate")), 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 Amended and Restated Pooling and
Servicing Agreement pursuant to which the Residual Certificate was issued (the
"Amended and Restated 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 or partnership created or organized in, or
under the laws of, the United States, any state or the District of Columbia,
including any entity treated as a corporation or partnership for federal income
tax purposes, 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 Amended and Restated 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 Amended
and Restated 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.
12. *[The Transferee has computed any consideration paid to it to
acquire the Class R-[I] [II] [IIU] [III] Certificate in accordance with proposed
U.S. Treasury Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or,
after they have been finalized, the final regulations) by computing present
values using a discount rate equal to the applicable Federal rate prescribed by
Section 1274(d) of the Code, compounded semi-annually.]
- ---------------------
* Insert appropriate paragraph, if applicable.
[The Transferee has computed any consideration paid to it to acquire
the Class R-[I] [II] [IIU] [III] Certificate in accordance with proposed U.S.
Treasury Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after
they have been finalized, the final regulations) by computing present values
using a discount rate at least equal to the rate at which the Transferee
regularly borrows, in the ordinary course of its trade or business, substantial
funds from unrelated third parties. The Transferee has provided all information
necessary to demonstrate to the transferor that it regularly borrows at such
rate.]
[The transfer of the Class R-[I] [II] [IIU] [III] Certificate
complies with Section 6 of Revenue Procedure 2001-12 (the "Revenue Procedure"),
2001-3 I.R.B. (January 16, 2001) (or comparable provisions of final U.S.
Treasury Regulations) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Section 860L(a)(2) of the Code, as to which income from Class
R-[I] [II] [IIU] [III] Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Investor within the meaning of Section 860L(g)
of the Code) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Class R-[I] [II] [IIU] [III]
Certificate only to another "eligible corporation," as defined
in Section 860(a)(2) of the Code, in a transaction that
satisfies the requirements of Section 4 of the Revenue
Procedure; and
(iv) the Transferee determined the consideration paid to it to
acquire the Class R-[I] [II] [IIU] [III] Certificate based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Transferee) that it has
determined in good faith.]
[Reserved]
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 __________, 200_.
[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 ______________, 200_.
________________________________________
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the ______day of _____________, 200_.
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 55497
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage Inc.
2001-1-MAC # N9303-121
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1, Class R-[I] [II]
[IIU] [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] [IIU] [III] Certificate
(the "Residual Certificate"), pursuant to Section 5.02 of the Amended and
Restated Pooling and Servicing Agreement (the "Amended and Restated Pooling and
Servicing Agreement"), dated as of June 1, 2001, among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A. and Bridger
Commercial Realty Finance LLC, as Mortgage Loan Sellers, GMAC Commercial
Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., 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 Amended and Restated 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 Amended and
Restated 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 2001-1
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Amended and Restated Pooling
and Servicing Agreement dated as of June 1, 2001 (the "Amended and Restated
Pooling and Servicing Agreement"), by and among Banc of America Commercial
Mortgage Inc., as Depositor, Bank of America, N.A. and Bridger Commercial Realty
Finance LLC, as Mortgage Loan Sellers, GMAC Commercial Mortgage Corporation, as
Master Servicer, Lennar Partners, Inc., 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: ___________________________________________________
Prospectus 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 Amended and Restated
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 Amended and Restated 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 Amended and Restated Pooling and Servicing
Agreement.
[GMAC COMMERCIAL MORTGAGE CORPORATION]
By: ___________________________________________
Name: _____________________________________
Title: ____________________________________
Phone: ____________________________________
[LENNAR PARTNERS, INC.]
By: ___________________________________________
Name: _____________________________________
Title: ____________________________________
Phone: ____________________________________
Please deliver the Mortgage File as follows:
____________________________________________
____________________________________________
____________________________________________
Attention: _________________________________
Phone: _____________________________________
EXHIBIT E
FORM OF REO STATUS REPORT
- ------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI___or NCF________
- ------------------------------------------------------------------------------------------------------------------------------------
P4 P7 P13 P9 P10 P16 OR P17 L8 P21 L37 L39
- ------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c)
- ------------------------------------------------------------------------------------------------------------------------------------
SHORT NAME PAID ALLOCATED TOTAL P&I OTHER EXPENSE
WHEN PROPERTY SQ FT OR THRU LOAN ADVANCE ADVANCE
PROPERTY ID APPROPRIATE) TYPE CITY STATE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
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.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
TABLE (CONTINUED)
- ------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI___or NCF________
- ------------------------------------------------------------------------------------------------------------------------------------
P4 L38 L25 L11 P53 OR P74 P58 OR P24 P25
P72/P79
OR P83
- ------------------------------------------------------------------------------------------------------------------------------------
(d) (e)=a+b+c+d (f) (g)
- ------------------------------------------------------------------------------------------------------------------------------------
PROPERTY TOTAL T & I TOTAL CURRENT MATURITY LTM LTM DSCR VALUATION APPRAISAL APPRAISAL
ID ADVANCE EXPOSURE MONTHLY P&I DATE NOI/NCF (NOI/NCF) DATE BPO OR BPO OR
OUTSTANDING DATE INTERNAL INTERNAL
VALUE VALUE
SOURCE
(1)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
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.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
TABLE (CONTINUED)
- --------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI___or NCF________
- --------------------------------------------------------------------------------------------------------
P4 L35 L77 P28 P26
- --------------------------------------------------------------------------------------------------------
(h)=(.90*g) -
e
- --------------------------------------------------------------------------------------------------------
PROPERTY ID LOSS USING TOTAL TRANSFER REO DATE ASSET COMMENTS
90% APPR. OR APPRAISAL DATE ACQUISITION EXPECTED TO
BPO (F) REDUCTION DATE BE RESOLVED
REALIZED
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
REO STATUS REPORT
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Property Property City Value Appraisal/BPO Loss Using Estimated Total Special
ID Name Type using NOI or Internal 92% Recovery % Appraisal Servicing
& Cap Rate Value Appraisal Reduction Transfer
or BPO Realized Date
- ------------------------------------------------------------------------------------------------------------------------------------
TABLE (C0NTINUED)
- --------------------------------------------------------------------------
Prospectus REO Pending Comments
ID Acquisition Resolution
Date Date
- --------------------------------------------------------------------------
REO STATUS REPORT
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Property Property City State Sq Ft or Paid Ending Total P&I Total Other Total
ID Name Type Units Thru Scheduled Advancese Expenses Advances Exposure
Date Balance to Date to Date (Taxes &
Insurance)
- ------------------------------------------------------------------------------------------------------------------------------------
TABLE (C0NTINUED)
- -----------------------------------------------------------------------------------------------------------------------
Prospectus Current Monthly Maturity LTM NOI LTM NOI LTM DSCR Cap Rate Valuation/
ID P&I Date Date Assigned *** Appraisal
Date
- -----------------------------------------------------------------------------------------------------------------------
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. 2001-1-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.,
Commercial Mortgage Pass-Through Certificates, Series 2001-1
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-1, Class __ (the
"Certificate") issued pursuant to that Amended and Restated Pooling and
Servicing Agreement, dated as of June 1, 2001 (the "Amended and Restated Pooling
and Servicing Agreement"), by and among Banc of America Commercial Mortgage
Inc., as depositor (the "Depositor"), Bank of America, N.A. and Bridger
Commercial Realty Finance LLC, as Mortgage Loan Sellers, GMAC Commercial
Mortgage Corporation, as master servicer (the "Master Servicer"), Lennar
Partners, Inc., 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 Amended and Restated 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 Amended and Restated
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 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
Bridger Commercial Realty Finance LLC,
as Mortgage Loan Seller
100 Shoreline Highway
Suite 100
Mill Valley, CA 94941
Attention: Robert Schonefeld
GMAC Commercial Mortgage Corporation,
as Master Servicer
650 Dresher Road
P.O. Box 1015
Horsham, PA 19044-8015
Attention : Managing Director of Commercial Servicing Operations
Re: Amended and Restated Pooling and Servicing Agreement dated as
of June 1, 2001 (the "Agreement") among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A.
and Bridger Commercial Realty Finance LLC, as Mortgage Loan
Sellers, GMAC Commercial Mortgage Corporation, as Master
Servicer, Lennar Partners, Inc., 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 2001-1
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 Sellers have
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 Sellers 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 Sellers
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Bridger Commercial Realty Finance LLC,
as Mortgage Loan Seller
100 Shoreline Highway
Suite 100
Mill Valley, CA 94941
Attention: Robert Schonefeld
GMAC Commercial Mortgage Corporation,
as Master Servicer
650 Dresher Road
P.O. Box 1015
Horsham, PA 19044-8015
Attention : Managing Director of Commercial Servicing Operations
Re: Amended and Restated Pooling and Servicing Agreement dated as
of June 1, 2001 (the "Agreement") among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A.
and Bridger Commercial Realty Finance LLC, as Mortgage Loan
Sellers, GMAC Commercial Mortgage Corporation, as Master
Servicer, Lennar Partners, Inc., 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 2001-1
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 Sellers have
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 Sellers 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 Sellers 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:
--------------------------------------------------------------------------------------------
(prcdng yr (prcdng yr to
Number of Mos. Covered to base) 2nd prcdng)
--------------------------------------------------------------------------------------------
3RD 2ND PRECEDING
Period Ended UNDERWRITING PRECEDING PRECEDING YEAR TTM/YTD (2) YYYY-U/W YYYY-YYYY
--------------------------------------------------------------------------------------------
Statement Classification(yr) BASE LINE (fm NOI AS OF / / VARIANCE VARIANCE
Adj 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:
(i.e. 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:
--------------------------------------------------------------------------------------------
(prcdng yr (prcdng yr to
Number of Mos. Covered to base) 2nd prcdng)
--------------------------------------------------------------------------------------------
3RD 2ND PRECEDING
Period Ended UNDERWRITING PRECEDING PRECEDING YEAR TTM/YTD (2) YYYY-U/W YYYY-YYYY
--------------------------------------------------------------------------------------------
Statement Classification(yr) BASE LINE (fm NOI AS OF / / VARIANCE VARIANCE
Adj 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:
(i.e. 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 L70/L97
- ------------------------------------------------------------------------------------------------------------------------------------
PRECEDING MOST
SHORT NAME PAID FISCAL YR RECENT
PROSPECTUS (WHEN PROPERTY SCHEDULED THRU MATURITY DSCR DSCR COMMENT/
LOAN ID APPROPRIATE) TYPE CITY STATE LOAN BALANCE DATE DATE NOI/NCF NOI/NCF ACTION TO BE TAKEN
- ------------------------------------------------------------------------------------------------------------------------------------
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: $
- ------------------------------------------------------------------------------------------------------------------------------------
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 Date Current Allocated 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 Date Current Allocated 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)
Less: Vacancy/collection loss
OR
Base Rent (2)
Expense Reimbursement
Laundry/Vending Income
Parking Income
Other 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
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 POLICY
ENDORSEMENT NO. 1
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NO.: 195 03 54
ISSUED TO: Bank of America
BY: American International Specialty Lines Insurance Company
CHANGE TO DECLARATIONS - NAMED INSURED
--------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 75793 (2/00), Item 1, Named Insured,
Item 2, Policy Period, Item 3, Limits of Liability, & Item 4, Deductible are
amended as follows:
ITEM 1: NAMED INSURED
Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
100 North Tryon Street, 11th Floor
Charlotte, NC 28255
GMAC Commercial Mortgage Corporation, as Master Servicer for Wells
Fargo Bank of Minnesota, N.A, as Trustee for the registered
certificate holders of Commercial Mortgage Pass-Through Certificates,
Series 2001-1
Lennar Partners, Inc. as Special Servicer for GMAC Commercial
Mortgage Corporation, as Master Servicer for Wells Fargo Bank of
Minnesota, N.A. as Trustee for the registered certificate holders of
Commercial Mortgage Pass-Through Certificates, Series 2001-1
ITEM 2: POLICY PERIOD: 7/20/00 to 7/20/17
ITEM 3: LIMITS OF LIABILITY: Each Loss $8,750,000
Total all Losses $8,750,000
ITEM 4: DEDUCTIBLE: Each Loss $0
All other terms, conditions and exclusions remain the same.
/s/ Armand Pepin
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NO.: 341 74 52
ISSUED TO: Bank of America
BY: American International Specialty Lines Insurance Company
CHANGE TO DECLARATIONS - NAMED INSURED
--------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Declarations Form 75793 (2/00), Item 1, Named insured,
& Item 4, Deductible are amended as follows:
ITEM 1: NAMED INSURED:
Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1 100 North Tryon Street, 11th
Floor Charlotte, NC 28255
GMAC Commercial Mortgage Corporation, as Master Servicer for Wells
Fargo Bank of Minnesota, NA. as Trustee for the registered
certificate holders of Commercial Mortgage Pass-Through Certificates,
Series 2001-1
Lennar Partners, Inc. as Special Servicer for GMAC Commercial
Mortgage Corporation, as Master Servicer for Wells Fargo Bank of
Minnesota, N.A. as Trustee for the registered certificate holders of
Commercial Mortgage Pass-Through Certificates, Series 2001-1
ITEM 4: DEDUCTIBLE: Each Loss $0
All other terms, conditions and exclusions remain the same.
/s/ Armand Pepin
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
A Capital Stock Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
[AISL LOGO]
A Member Company of
American International
Group, Inc.
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as trustee for the
holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-1
AND 100 North Tryon Street, 11th Floor
POST OFFICE: Charlotte, NC 28255
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED
COVERAGE. PLEASE READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 76 84
ITEM 1: NAMED INSURED Wells Fargo Bank of Minnesota, N.A. as trustee
for the holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-1
ADDRESS 100 North Tryon Street, 11th Floor
Charlotte, NC 28255
ITEM 2: POLICY PERIOD: FROM 5/29/01 TO equal to each specific property's
remaining loan Term (as listed on
Schedule A) plus 7 years
12:01 A.M. Standard time at the address of the
Named Insured shown above.
ITEM 3: LIMITS OF LIABILITY Each Loss $32,000,000
Total all Losses $264,000,000
ITEM 4: DEDUCTIBLE: Each Loss $0
ITEM 5: INSURED PROPERTY(IES): See Schedule of Insured Property Endorsements
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
ITEM 6: POLICY PREMIUM $340,000
Broker: Environmental Insurance Brokerage Services
226 Lowell Street, B-4A
Wilmington, MA 01887
ENDORSEMENTS: See Forms Schedule
/s/ Armand Pepin
------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where
applicable)
Copyright, American International Group, Inc., 1999
FORMS SCHEDULE
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
POLICY NO: 341 76 84
EFFECTIVE 12:01AM: 5/29/01
FORM NAME FORM NUMBER
- --------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page
Schedule of Insured Properties
Minimum Earned Premium
Secured Creditor Impaired Property Endorsement
Additional Named Insured Endorsement
Schedule A Endorsement
ENDORSEMENT NO. 1
FORMS A PART OF POLICY NO.: 341 76 84
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
SCHEDULE OF INSURED PROPERTIES
------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
In consideration of the premium paid, it is hereby agreed that the following
properties are scheduled as INSURED PROPERTIES effective 12:01 a.m. 5/29/01 and
expires 12:01 a.m. equal to EACH SPECIFIC PROPERTY'S REMAINING LOAN TERM (AS
LISTED ON SCHEDULE A) PLUS 7 YEARS:
BORROWER ADDRESS CITY ZIP
- -------- ------- ---- ---
Country Homes Village MHP FM 741/Towns Road Weir TX
Sam's Club - Yuma AZ 1800 East Palo Verde Street Yuma AZ
2815 Camino Del Rio Building 2815 Camino Del Rio South San Diego CA
Renaissance Plaza 1644-1684 SW Willamette Falls West Linn OR
Courtright Lane Apartments 2269 Courtright Road Columbus OH
Freeway VIII Center 20007 44th Avenue West Lynwood WA
Southtown Blvd. Commercial 1881 Southtown Blvd. Moraine (Dayton) OH
Building
Park Plaza Shopping Center 789 Hebron Road Heath OH
The Fur Plaza 4830-4848 Sunrise Highway Sayville NY
Broadway Shoppette 5553-5555 S. Broadway Littleton CO
Mountain View Mobile Home Park 3109 East Mulberry Street Fort Collins CO
Lantern Arms Apartments 848 Riverview Terrace Dayton OH
Windmill Courts Apartments Clark Street Cazenovia NY
Aiea Shopping Center 99-115 Aiea Heights Road Aiea HI
Capitol Mini-Storage #2 410 58th Street Charlestown WV
Desertbrook Apartments 3703 West Kennewick Avenue Kennewick WA
Elmtree Park Apartments 11023 Elmtree Park Dr Indianapolis IN
Real Property Services Office 818 W. Brooks Avenue North Las Vegas NV
Building
Sherbrook Apartments 8026 McFarland Court Indianapolis IN
Cherry Glen Apartments I & II 2752 Cherry Glen Way Indianapolis IN
Elmwood Apartments II 5111 Elmburst Road #3 West Palm Beach FL
King's Colony Apartments 1425 King George Blvd. Savannah GA
Clearlake Pines Apartments II 2600 Clearlake Road #15A Cocoa FL
Brandywyne Apartments East 418 19th Street, SE Winter Haven FL
Woodlands Apartments of 5354 Deerbrook Lane Columbus OH
Columbus II
Sky Pines Apartments 4990 North Lane #902 Orlando FL
Pine Knolls Apartments of 7393 Tara Road Jonesboro GA
Clayton County
Woodland Apartments I & II 2909 Burroughs Drive #7 Orlando FL
Cedarwood Apartments I & II 1306 Cedarbrook Drive Goshen IN
Harvest Grove Apartments 5239 Harvestwood Lane Gahanna OH
Sunnyside Apartments 909 West 20th Street Tifton GA
Deerwood Apartments 611 Mt. Homer Road Eustis FL
ImageMax Warehouse 1040 Wabash Avenue Chesterton IN
Laurel Court Apartments 125 St. Paul Drive Fremont OH
Fashion Bug/Wonder Bread 2605 East Main Street Plainfield IN
Morris Manor Apts. 5721-45 Morris Street Philadelphia PA
Lakemont Office Bldg. 11901 W. 48th Ave. Wheat Ridge CO
Prime Commercial 645 North Overland Avenue Burley ID
Partners-Burley
Honk's 99 Cent Retail Store
Parkside Manor Apartments 800-820 Montie Road Lincoln Park MI
Chelten Arms Apartments 500-502 West Chelten Avenue Philadelphia PA
Seattle Mini Storage 1100 Poplar Place South Seattle WA
Premier Plaza Shopping Center 1301-1321 W. Government Road Brandon MS
President & Bel Air Apts. 523-529 West Chelten Avenue Philadelphia PA
Marriott Courtyard-Embassy Row 1600 Rhode Island Avenue, NW Washington DC
Ballantyne Commons East 15007 John J. Delaney Dr. Charlotte NC
EDS Customer Relationship 300 10th Street Clarion IA
Management Inc. Building
Sunrise MHP 3900 Lenore Drive Wichita Falls TX
Saddleback Technology Park #2 26631 Cabot Road Mission Viejo CA
Keystone MHP 303 Gordy Road Bacliff TX
Cedarwood Apartments 2411 Cedarwood Avenue Lawrence KS
Saddleback Technology Park #1 26621 Cabot Road Mission Viejo CA
Electric Machinery Enterprises 2515 East Hanna Avenue Tampa FL
Vanguard Self Storage 325 Trousdale Drive Chula Vista CA
Rite Aid, Highland Falls 188 Main Street Highland Falls NY
Freeport Office Center IV 3660 Regent Boulevard Irving TX
38-40 Colorado Blvd. 38-40 East Colorado Blvd. Pasadena CA
Pyramid Plaza 7434 Louis Pasteur Drive San Antonio TX
Pico Boulevard 8771 W. Pico Boulevard Los Angeles CA
US Storage Centers, Newport 1652 Newport Blvd. Costa Mesa CA
Dickinson Square 1500 S. Christopher Columbus Philadelphia PA
Boulevard
Premier Distribution 4013 Premier Avenue Memphis TN
Southpoint Shopping Center 7900 Florin Road Sacramento CA
Country Hills Mobile Estates 11901 W McDowell Road Avondale AZ
Suburban Acres-Rapid Estates 6763 Minnick Road, 6773 Lockport NY
Rapids Road
Mangrove Square 1722 Mangrove Avenue Chico CA
800 California Street 800 California Street Mountain View CA
Westside Center 33301-33309 1st Avenue South Federal Way WA
Lake Meridian Apartments 14901 S E 272nd Street Kent WA
Center Pointe Business Park 1280, 1300, 1400 North El Cajon CA
Johnson Avenue
McNulty Road 12285 McNulty Road Philadelphia PA
North Broadway Office 2333 North Broadway Santa Ana CA
Snug Harbor MHP 560 30th Avenue Santa Cruz CA
Airport Commerce Center 11840, 11860, 11904-11954 La Del Aire CA
Cienega Blvd.
The Sierras 7158 Winton Way Winton CA
Grissom Lane Office Warehouse 11038 Grissom Lane Dallas TX
Building
0ee Street Office Warehouse 13777 Bee Street Farmers TX
Building
Hollywood MHP 7230 4th Street North St. Petersburg FL
API Facility 6620 Lakeside Road West Palm Beach FL
Glendale Office 815-819 E. Colorado Street Glendale CA
Shady Grove Shopping Center 2200 West Shady Grove Road Irving TX
Diamond Bar Plaza 1195 South Diamond Bar Diamond Bar CA
Boulevard
Colonial Pines 550 Bilper Avenue Lindenwold NJ
Apartments/Kushner
Colonial Pines 836 Cooper Landing Road Cherry Hill NJ
Apartments/Kushner Township
Patrick Professional Plaza 3950-3960 East Patrick Lane Las Vegas NV
Cedar Gardens 3701 North Rolling Road Baltimore MD
Apartments/Kushner
Cedar Towers 3701 Twin Lakes Court Baltimore MD
Apartments/Kushner
Eastampton Gardens A1 Bentley Road Eastampton NJ
Apartments/Kushner
Stealth II 501 Technology Drive Cecil Township PA
Country Village 453 Country Drive Dover DE
Apartments/Kushner
Morally Wholesale Design 456 East Mission Road San Marcos CA
Center
Hershey Apartments 1104 Hershey Street Bloomington IL
Willedrob Apartments 2 Willedrob Bloomington IL
Autumn Wood Apartments 3015B Autumn Wood Drive Huntsville AL
Vernon Stables 305-327 East Vernon Drive Normal IL
High Street Office 849 High Street Palo Alto CA
Westbay Apartments 2000 Parson Street Costa Mesa CA
Acacia Court 20250 Acacia Street Newport Beach CA
Tech Center Plaza 2910, 2911, 2921, 2931 North Las Vegas NV
Tenya Way
Minyard's Property 11445 Garden Road Dallas TX
Comfort Suites-BWI Airport 815 Elkridge Landing Road Linthicum MD
Baycrest Apartments 2707-2709 Wildwood Circle & Caldwell ID
2714-2718 Arlington Avenue
Prospect Office Building 857 Tenacity Drive Longmont CO
Alum Rock Self Storage 2487 Rock Avenue San Jose CA
Prudential Office Building 8 Lafayette Place Hilton Head Island SC
Carswell Office Building 1 Park Lane Hilton Head Island SC
Stoneworks Showroom 28 Hunter Road Hilton Head Island SC
Enterprise Court 41715, 41743 and 41769 Temecula CA
Enterprise Circle
ABI Distribution Center 4701 West Pointe Boulevard Oklahoma City OK
Bascom Square Apartments 222 North Muller Street Anaheim CA
Westwood Heights Apartments 445 SW 27th Avenue Ft. Lauderdale FL
Spring Park Shopping Center 19770 North Freeway Spring TX
Industrial Park South 1160 and 1234 Palmour Drive Gainesville GA
Waretech Industrial Park 3085 Reid Road Grand Blanc MI
Torrance Self Storage 2515 Maricopa Street Torrance CA
Whipple Creek Apartments 2019 NE 179th Street Ridgefield WA
Westwood Apartments 4834 East Gettysburg Avenue Fresno CA
Keystone Industrial Park 2558 Pearl Buck road Bristol PA
Balboa Boulevard Building 9944 Balboa Avenue San Diego CA
Mountain View Villa MHC 21621 Sandia Avenue Apple Valley CA
PCS Holdings Corp Office 9501 E. Shea Boulevard Scottsdale AZ
Building
Magna Post Office 8470 West 2700 South Magna UT
Nation's Capital Archives 14811 Farm Creek Drive Woodbridge VA
Canoga Avenue Industrial 9667 Canoga Avenue Chatsworth CA
Holiday Rancho MHP 34184 County Line Road Yucaipa CA
Caledon Woods Professional 3 & 11 Caledon Court Greenville SC
Park Bldgs 3 & 11
Quality Distribution Center 130 West Jones Road Fostoria OH
Hackensack Industrial 100 Commerce Way Hackensack NJ
Buchanan Visual Communications 12400 Ford Road Farmers Branch TX
Carson Crest Apartments 1401 Carson Road Birmingham AL
CVS - Trenton, TN 2058 US Highway 45 Bypass Trenton TN
South
Lake Jasmine Apartments 1182 Redman Street Orlando FL
Vogue Apartments 3585-3595 Central Avenue Fort Myers FL
French Quarter 6400 North Armenia Avenue Tampa FL
Marlboro Courts MHP 4261 Hillary Circle West Palm Beach FL
Columbia Apartment Portfolio Summary Page Columbia MO
Columbia Apartment 301 Tiger Lane Columbia MO
Portfolio-Tiger Village Apts.
Columbia Apartment 109 N. Stadium Boulevard Columbia MO
Portfolio-Holiday House Apts.
Westport Commons Apartments 1545 Spruce Terrace Tampa FL
Parkside I & II 951 SW 11th Street and 1020 Gainesville FL
SW Depot Avenue
Historic Mission Inn 3649 Mission Inn Avenue Riverside CA
Colony Apartments 2206 Whitegate Drive Columbia MO
Vintage Plaza 3424 & 3416 Dale Road, and Modesto CA
2936 Veneman Avenue
A-1 Self Storage 2900 Monterey Road San Jose CA
Flinn Springs MHP 14595 Olde Highway 80 Flinn Springs CA
Merchants Row Mall 2061-2071 Washington Street Hanover MA
(Route 53)
Quality Stores Inc. - Battle 6360 B Drive North Battle Creek MI
Creek, MI
Talley Plaza 2702, 2800, 2828 North 44th Phoenix AZ
Street
South Charleston Mini-Storage 4126-4200 Kanawha Turnpike South Charleston WV
Forest Park Apartments 580 Dewdrop Circle Forest Park OH
Crowfield Plaza Shopping 971 Crowfield Blvd. Goose Creek SC
Center
La Quinta Springs Apartments 46896 Jefferson Street Indio CA
One Lake Park Office Building 2140 Lake Park Boulevard Richardson TX
Calverton Office Building #5 11785 Beltsville Drive Beltsville MD
Elliot & Price Mini Storage 2880 W. Elliot Road Chandler AZ
Indian Creek MHC 643 Indian Creek Road Locust Grove GA
Soaring Gulls Office Building 3200 Soaring Gulls Drive Las Vegas NV
Gough & Fell Apartments 300 Gough Street and 280 Fell San Francisco CA
Street
Kingston Pike 7212 Kingston Pike Knoxville TN
Willows Corporate Center 11261 Willows Road Redmond WA
Holland Boone Shopping Center 15030 North Tatum Blvd. Phoenix AZ
Mariposa Manor MHC 945 W. Manor Drive Nogales AZ
Sandalwood Apartments 5070 E. Ashlan Ave. Fresno CA
Goose Creek Apartments 2 Goose Creek Drive Bloomington IL
Lake Park Tower Apartments 13855 Superior Road East Cleveland OH
Fountain Court Apartments 15415 35th Ave. West Lynnwood WA
Northwest-Spalding Building 319 SW Washington Street Portland OR
RCA - Royal Phoenician 16900 Northcase Drive Houston TX
Apartments
Northwest-Beaverton Center 14155-14255 SW Brigadoon Court Beaverton OR
Ball Plastics Warehouse 2900 McLane Drive Lysander NY
Motts Warehouse 200 Dunn Road Lyons NY
Sav-On Drug Store No. 96BT 702-704 North Azusa Avenue West Covina CA
Eagle One Distribution 105 Eagle Vista Parkway Atlanta GA
Warehouse
Northwest-Vancouver Business 3315 NE 112th Avenue Vancouver WA
Park
Eagle Two Distribution 100 Eagle Vista Parkway Atlanta GA
Warehouse
Arabi Shopping Center - Winn 7400 West Judge Perez Drive Arabi LA
Dixie #1434
Severn Place Office Building 2450 Severn Avenue Metairie LA
Keswick Village Apartments 2811 Keswick Village Court Conyers GA
Marlboro Village Center Old Marlboro Pike and Brown Upper Marlboro MD
Station Road
RCA - Lexington Apartments 2620 LeJuene Drive Biloxi MS
RCA - Regency Arms 6363 San Felipe Road Houston TX
RCA - Royal St. Moritz 2050 Grayson Drive Grapevine TX
Apartments
Northwest-Plaza West 9600 SW Oak Street Tigard OR
Northwest-Cascade Building 520 SW Sixth Avenue Portland OR
Northwest-Hidden Valley 1750 112th Avenue, NE Bellevue WA
Arda Jean Apartments 2860 & 2862 South, 200 East South Salt Lake UT
Street
Kimberly Gardens MHP 24922 Muirlands Blvd. Lake Forest CA
Intermountain Self Storage 3960 2nd Avenue Pocatello ID
Downtown Mini Storage 1050 West Washington Blvd. Los Angeles CA
All other terms, conditions and exclusions remain the same.
/s/ Armand Pepin
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 84
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders
of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
MINIMUM EARNED PREMIUM ENDORSEMENT
----------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the following minimum earned premium will apply:
Binding Coverage Minimum Premium Earned 100%
The premium will be 100% earned at inception of the Policy.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 5/29/01
FORMS A PART OF POLICY NO.: 341 76 84
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders
of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A, is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect to
Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services. Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes or events of default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided that
the DEFAULT was not cured within the applicable grace period as provided by
the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge,
dispersal, release or escape of any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, hazardous substances, and waste materials into or
upon land, or any structure on land, the atmosphere or any watercourse or
body of water, including groundwater, resulting in concentrations or
amounts exceeding maximum levels allowed by applicable ENVIRONMENTAL LAWS,
or by governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
POLLUTION CONDITIONS also includes the discharge, dispersal, release or
escape of radon into any structure or on land.
(2) with respect to Coverage B, the discharge, dispersal,
release, or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on land,
the atmosphere or any watercourse or body of water, including groundwater,
provided such conditions are not naturally present in the environment in
the concentration or amounts discovered. POLLUTION CONDITIONS also includes
the discharge, dispersal, release or escape of radon into any structure or
on land.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of such
assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
ENDORSEMENT NO. 4
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 84
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders
of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
ADDITIONAL INSURED(S) ENDORSEMENT
---------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the following entity(ies) is (are) included as an
additional INSURED(S). Coverage for such additional INSURED(S) applies under
this Endorsement:
1. Solely to the additional INSURED'S liability arising out of the NAMED
INSURED'S ownership, security interest in, operation, maintenance or use of
the INSURED PROPERTY(IES) and
2. Only if the additional INSURED is named in a suit as a co-defendant with
the NAMED INSURED, alleging the additional insured is liable on the basis
described in paragraph 1 above,
ADDITIONAL INSURED(S)
---------------------
GMAC Commercial Mortgage Corporation, as Master Servicer for Wells Fargo Bank
of Minnesota, N.A as Trustee for the registered certificate holders of
Commercial Mortgage Pass-Through Certificates, Series 2001-1
Lennar Partners, Inc. as Special Servicer for GMAC Commercial Mortgage
Corporation, as Master Servicer for Wells Fargo Bank of Minnesota, N.A. as
Trustee for the registered certificate holders of Commercial Mortgage
Pass-Through Certificates, Series 2001-1
All other terms and conditions remain unchanged.
/s/ Armand Pepin
-------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
SCHEDULE A
- ---------------------------------------------------------------------------------------------------------------
No. Loan Number Property Name Property Type
- ---------------------------------------------------------------------------------------------------------------
1 51020 Premier Plaza Shopping Center Retail
2 51084 Ballantyne Commons East Retail
3 51225 2815 Camino Del Rio Building Office
4 51674 Shady Grove Shopping Center Retail
5 51872 Comfort Suites-BWI Airport Hotel
6 51833 Courtright Lane Apartments Multifamily
7 51835 Park Plaza Shopping Center Retail
8 51837 Capital Mini-Stroage #2 Mini Storage
9 61838 South Charleston Mini-Storage Mini Storage
10 51941 Real Property Services Office Building Office
11 51942 Clearlake Pines Apartments II Multifamily
12 51943 Elmwood Apartments II Multifamily
13 51944 Woodland Apartments I & II Multifamily
14 51945 Sky Pines Apartments Multifamily
15 51948 Deerwood Apartments Multifamily
16 51947 Brandywine Apartments East Multifamily
17 51948 Pine Knoll Apartments of Clayton County Multifamily
18 51849 Sunnyside Apartments Multifamily
19 51950 King's Colony Apartments Multifamily
20 51951 Laurel Court Apartments Multifamily
21 51952 Woodlands Apartments of Columbia II Multifamily
22 51953 Harvest Grove Apartments Multifamily
23 51954 Cedarwood Apartments I & II Multifamily
24 51955 Cherry Glen Apartments I & II Multifamily
25 51956 Sherbrook Apartments Multifamily
26 51957 Elmtree Park Apartments Multifamily
27 51958 Fashion Bug Wonder Bread Retail
28 51973 Desertbrook Apartments Multifamily
29 51974 Seattle Mini Storage Mini Storage
30 51977 Aida Jean Apartments Multifamily
31 51978 Renaissance Plaza Office
32 51979 Broadway Shoppette Retail
33 51980 Southtown Blvd. Commercial Building Industrial
34 51981 The Fur Plaza Retail
35 51982 Lantam Arms Apartments Multifamily
36 51983 Image Wax Warehouse Industrial
37 51984 Freeway VIII Central Retail
38 51985 Mountain View Mobile Home Park Mobile Home
39 51986 Windmill Courts Apartments Multifamily
40 51987 Prime Commercial Parners-Burley Honk's 99 Cent Retail Retail
41 51989 Parkside Manor Apartments Multifamily
42 51990 Lakamont Office Bldg. Office
43 52141 Tech Center Plaza Office
44 52336 Downtown Mini Storage Mini Storage
45 52387 Magna Post Office Office
46 52536 Manyard's Property Retail
47 52533 Marriott Courtyard - Embassy Row Hotel
48 52587 Marlboro Village Center Hotel
49 53079 Colony Apartments Multifamily
50 53127 Elliot & Price Mini Storage Mini Storage
51 53169 Columbia Apartment Portfolio Multifamily
52 53169 Columbia Apartment Portfolio - Tiger Village Apts Multifamily
53 53169 Columbia Apartment Portfolio - Holiday House Apts. Multifamily
54 53169 Columbia Apartment Portfolio - Gatehouse Apts. Multifamily
55 53247 Fountain Court Apartments Multifamily
56 53343 Aiea Shopping Center Retail
57 53408 Cedar Gardens Apartments/Kushner Multifamily
58 53407 Cedar Towers Apartments/Kushner Multifamily
59 53410 Colonial Apartments/Kushner Multifamily
60 53411 Colonial Pines Apartments/Kushner Multifamily
61 53412 Country Village Apartments Kushner Multifamily
62 53414 Eastampton Gardens Apartments Kushner Multifamily
63 53509 Goose Creek Apartments Multifamily
64 53529 Hackensack Industrial Industrial
65 53531 One Lake Park Office Building Office
66 53552 A-1 Self Storage Mini Storage
67 53570 CVS - Trenton, TN Retail
68 63630 Westwood Heights Apartments Multifamily
69 53878 Nation's Capital Archives Industrial
70 53749 Caledon Woods Professional Park Bldgs 3 & 11 Office
71 53806 Ball Plastics/Motts Warehouse - Summary Industrial
72 53808 Motts Warehouse Industrial
73 63808 Ball Plastics Warehouse Industrial
74 53879 Talley Plaza Office
75 53894 Merchants Row Mall Retail
76 53985 Spring Park Shopping Center Retail
77 53967 PCS Holdings Corp. Office Building Office
78 54028 Westwood Apartments Multifamily
79 54055 Keystone Industrial Park Industrial
80 54058 315 Park Avenue Office
81 54109 Sandalwood Apartments Multifamily
82 64134 Holland Boone Shopping Center Retail
83 64141 Sav-On Drug Store No. 5687 Retail
84 54221 Eagle One Distribution Warehouse Industrial
85 34221 Eagle Two Distribution Warehouse Industrial
86 54228 Westport Commons Apartments Multifamily
87 54297 Sam's Club - Yuma AZ Retail
88 54321 Parkside I & II Multifamily
89 54322 Vintage Plaza Retail
90 64948 Vogue Apartments Multifamily
91 54449 French Quarter Multifamily
92 54473 Crowfield Plaza Shopping Center Retail
93 54503 Gough & Fall Apartments Multifamily
94 54538 Arahl Shopping Center - Winn Dixie # 1434 Retail
95 54608 Severn Place Office Building Office
96 64625 Lake Park Tower Apartments Multifamily
97 54658 701 Gateway Office Building Office
98 64864 Freeport Office Center IV Office
99 64874 Historic Mission, Inc. Hotel
100 64700 EDS Customer Relationship Management Inc. Building Industrial
101 34739 Northwest-Beaverton Center Office
102 51740 Northwest-Vancouver Business Park Industrial
103 54742 Northwest-Plaza West Office
104 54745 Northwest-Cascade Building Office
105 54748 Northwest-Spalding Building Office
106 54748 Northwest -Hidden Valley Office
107 54781 Keswick Village Apartments Multifamily
108 54812 RCA- Lexington Apartments Multifamily
109 64813 RCA - Regency Arms Multifamily
110 64814 RCA - Royal Phoenician Apartments Multifamily
111 51816 RCA-Royal St. Moritz Apartments Multifamily
112 600012 38-40 Colorado Blvd. Retail
113 600055 Prospect Office Building Office
114 245990123 Cedarwood Apartments Multifamily
115 400003143 Keystone, MHP Mobile Home Park
116 416000149 Saddleback Technology Park #2 Industrial
117 415990127 Saddleback Technology Park #1 Industrial
118 415990105 Vanguard Self Storage Self-Storage
119 276000145 Rite Aid Highland Falls Retail
120 302000148 Lake Meridian Apartments Multifamily
121 430990121 Electric Machinery Enterprises Industrial
122 410690031 Morris Manor Apts. Multifamily
123 410990003 Chadlan Arms Apartments Multifamily
124 410890032 President & Bel Air Apts. Multifamily
125 430890126 Grissom-Bee Street Warehouses (Roll-up) Industrial
126 430590128A Grissom Lane Office Warehouse Building Industrial
127 430990128B Bee Street Office Warehouses Building Industrial
128 295000135 US Storage Centers, Newport Self-Storage
129 330000??? Southpoint Shopping Center Retail
130 400000154 Country Hills Mobile Estates Mobile Home Park
131 302000148 Pico Boulevard Retail
132 400000162 Surburban Acres-Realty Estates Mobile Home Park
133 400000141 Premier Distribution Industrial
134 302000163 The Sierras Multifamily
135 280990122 Pyramid Plaza Office
136 400000183 Snug Harbor MHP Mobile Home Park
137 308000170 Mangrove Square Retail
138 400990118 Sunrise MHP Mobile Home Park
139 415000152 Center Pointe Business Park Industrial
140 800000173 Westside Center Office
141 304000155 800 California Street Office
142 300980018 Kimberly Gardens, MHP Mobile Home Park
143 275000160 McNulty Road Industrial
144 400000169 Airport Commerce Center Industrial
145 415000195 Westbay Apartments Multifamily
146 615000171 API Facility Office
147 24000220 Acacia Court Office
148 400000181 Hollywood MHP Mobile Home Park
149 400000188 Country Homes Village MHP Mobile Home Park
150 240000167 North Broadway Office Office
151 415000183 Glendale Office Office
152 400000201 Autumn Wood Apartments Multifamily
153 8200001B0 Weistech Industrial Park Industrial
154 275850124 Morally Wholesale Design Center Industrial
155 275950124 Dickinson Square Office
156 415000207 Diamond Bar Plaza Retail
157 820000198 Vernon Stables Multifamily
158 309090203 Patrick Professional Plaza Office
159 820000210 Hershey & Wiledrob Apts. Roll Up Multifamily
160 820000210A Hershey Apartments Multifamily
161 8200002108 Wiledrob Apartments Multifamily
162 312000210 Stealth II Office
163 410000198 Baycrest Apartments Multifamily
164 100000215 Prudential, Stoneworks & Carewell Buildings Various
165 100000215A Prudential Office Building Office
166 1000002158 Carewell Office Building Office
167 1000002150 Stoneworks Showroom Industrial
168 310000302 High Street Office Office
169 302000168 Alum Rock Self Storage Self-Storage
170 440000208 Intermountain Self Storage Self-Storage
171 311000205 Enterprise Court Office
172 600000218 Whipple Creek Apartments Multifamily
173 302000206 Torrance Self Storage Self-Storage
174 240000204 ABI Distribution Center Industrial
175 100000225 Industrial Park South Industrial
176 415000222 Bassom Square Apartments Multifamily
177 314000202 Canoga Avenue Industrial Industrial
178 300000248 Quality Distribution Center Industrial
179 400000228 Carson Crest Apartments Multifamily
180 400000262 Lake Jasmine Apartments Multifamily
181 15000221 Mountain View ??? MHC Mobile Home Park
182 31100021P Buchanan Visual Communications Industrial
183 400000231 Holiday Rancho MHP Mobile Home Park
184 400000203 Flinn Springs MHP Mobile Home Park
185 415000242 La Qulpta Springs Apartments Multifamily
186 250009223 Calverton Office Building #5 Office
187 100000268 Forest Park Apartments Multifamily
188 800000214 Willows Corporate Center Office
189 400000275 Soaring Gulls Office Building Office
190 400000287 Mariposa Manor MHO Mobile Home Park
191 400000229 Marlboro Courts MHP Mobile Home Park
192 430000217 Balboa Boulevard Building Industrial
193 308000248 Quality Stones Inc. -- BattleCreek, MI Retail
194 400000255 Indan Creek MHO Mobile Home Park
195 318000261 Kingston Pike Retail
- ------------------------------------------------------------------------------------------------------------------------------------
Original
No. Property Address Property City State Zip Code Prin. Balance
- ------------------------------------------------------------------------------------------------------------------------------------
1 1301-1321 W. Government Rd Brandon MS 39042 5,544,000
2 13007 John J. Delaney Dr. Charlotte NC 28277 14,750,000
3 2815 Camino Del Rio South San Diego CA 92108 3,850,000
4 2200 West Shady Grove Road Irving TX 75080 5,200,000
5 815 Elkridge Landing Road Linthicum MD 21090 6,580,000
6 2269 Courtright Road Columbia OH 43233 1,140,000
7 789 Hebron Road Heath OH 43056 2,800,000
8 410 56th Street Charleston WV 28004 2,173,000
9 4128-4200 Kanawha Turnpike South Charleston WV 25009 1,221,000
10 816 W. Brooks Avenue North Las Vegas NV 88030 2,582,000
11 2600 Clearlake Road #18A Cocoa FL 38222 800,000
12 5111 Elmhurst Road #3 West Palm Beach FL 33417 1,350,000
13 2909 Burroughs Drive #7 Orlando FL 32816 3,625,000
14 4990 North Lane #902 Orlando FL 32803 2,325,000
15 611 Mt. Homer Road Eusis FL 32728 681,250
16 416 19th Street, SE Winter Haven FL 33684 6,000,000
17 7393 Tara Road Jonesboro GA 30236 1,230,000
18 809 West 29th Street Tilton GA 31784 1,342,000
19 1425 King George Blvd. Savannah GA 31419 2,100,000
20 125 St. Paul Drive Fremont OH 43420 1,125,000
21 6054 Deerbrook Lane Columbus OH 43213 1,575,000
22 5239 Harvestwood Lane Gahanna OH 43230 1,850,000
23 1306 Cedarbrook Drive Goshen IN 46526 1,850,000
24 2752 Cherry Glen Way Indianapolis IN 46227 3,200,000
25 8026 McFarland Court Indianapolis IN 48227 1,888,250
26 11023 Elmtree Park Dr. Indianapolis IN 48229 1,500,000
27 2605 East Main Street Plainfield IN 46183 1,025,000
28 3703 West Kannawick Avenue Kennawick WA 99306 3,187,000
29 1100 Poplar Place South Seattle WA 98144 1,873,000
30 2860 & 2882 South 200 East Street South Salt Lake UT 84115 1,949,000
31 1644-1684 SW Willemette Falls West Linn CA 97068 750,000
32 5550-5555 S. Broadway Littleton CO 80121 430,000
33 1851 Southtown Blvd. Morraina (Dayton) OH 45409 1,087,500
34 4830-4846 Sunrise Highway Sayville NY 11782 750,000
35 648 Riverview Terrace Dayton OH 45407 600,000
36 1040 Wabash Avenue Chesterton IN 48304 600,000
37 20007 44th Avenue West Lynnwood WA 98038 700,000
38 3109 East Mulberry Street Fort Collins CO 60624 815,000
39 Clark Street Cazenovia NV 13035 500,000
40 645 North Overland Avenue Burley ID 60318 320,000
41 600-620 Month Road Lincoln Park MI 45145 750,000
42 11501 W. 48th Avenue Wheat Ridge CO 80103 730,000
43 2901, 2911, 2821 & 2501 North Tampa Way Las Vegas NV 89128 7,000,000
44 1050 West Washington Blvd. Los Angeles CA 80315 3,340,000
45 8470 West 2700 South Magna UT 84014 2,450,000
46 11445 Garland Road Dallas TX 75218 2,610,000
47 1600 Rhode Island Avenue, NW Washington DC 20038 13,800,000
48 Old Marlboro Pike and Brown Station Road Upper Marlboro MD 20772 10,400,000
49 2208 Whitegate Drive Columbia MD 56203 5,650,000
50 2360 W. Elliot Road Chandler AZ 56224 1,600,000
51 Summary Page Multiple MO Multiple 11,000,000
52 301 Tiger Lane Columbia MO 65203
53 100 N. Stadium Boulevard Columbia MO 65203
54 2401 West Broadway Columbia MO 65203
55 15445 35th Ave. West Lynnwood WA 98307 7,600,000
56 99-115 Aiea Heights Road Aiea HI 96701 6,065,065
57 2701 North Rolling Road Baltimore MD 21244 6,304,857
58 3701 Twin Lakes Court Baltimore MD 21244 5,335,171
59 638 Cooper Landing Road Cherry Hill Township NJ 08002 7,907,885
60 560 Bilper Avenue Lindenwold NJ 08021 11,059,835
61 450 Country Drive Dover DE 18801 7,356,340
62 A1 Bentley Road Eastampton NJ 08060 6,977,812
63 2 Goose Creek Drive Bloomington IL 61701 3,880,000
64 100 Commerce Way Hackensack NJ 07601 1,800,000
65 2140 Lake Park Boulevard Richardson TX 76085 25,800,000
66 280 Monterey Road San Jose CA 83111 5,100,000
67 2056 US Highway 45 Bypass South Trenton TN 35382 1,072,000
68 445 SW 27th Avenue Ft. Lauderdale FL 33312 600,000
69 14811 Farm Creek Drive Woodbridge VA 22181 2,400,000
70 3 & 11 Caledon Court Greenville SC 29815 2,822,060
71 Summary Page Multiple NY Multiple 6,000,000
72 200 Dunn Road Lyons NY 14489
73 2803 McLane Drive Lysander NY 13027
74 2702, 2600, 2828 North 44th Street Phoenix AZ 85004 16,000,000
75 2061-2071 N. Washington Street/Route 531 Hanover MA 02039 4,150,000
76 19770 North Freeway Spring TX 77373 2,300,000
77 9501 E. Shea Boulevard Scotsdale AZ 85260 24,700,000
78 4834 East Gettysburg Avenue Fresno CA 83726 2,683,000
79 2558 Pearl Buck Road Bristol PA 19077 4,118,635
80 315 Park Avenue South New York NY 10010 87,200,000
81 5070 E. Ashlan Avenue Fresno CA 93727 2,300,000
82 15000 North Taluro Boulevard Phoenix AZ 85002 1,725,000
83 702-704 North Azusa Avenue West Covina CA 91791 3,600,000
84 105 Eagle Vista Parkway Atlanta GA 30338 17,681,500
85 100 Eagle Vista Parkway Atlanta GA 30336 11,225,000
86 1545 Spruce Terrace Tampa FL 33637 4,000,000
87 1800 East Palo Verde Street Yuma AZ 85365 1,850,000
88 951 SW 11th Street and 1020 SW Depot Avenue Gainesville FL 32801 1,250,000
89 3424 & 3416 Dale Road, and 2906 Venaman Avenue Modesto CA 95356 1,500,000
90 3685-3595 Central Avenue Fort Myers FL 33901 2,175,000
91 6400 North Armenta Avenue Tampa FL 33804 1,850,000
92 871 Crowfield Blvd Goose Creek SC 29202 3,160,000
93 330 Gough Street and 280 Fall Street San Francisco CA 94102 10,000,000
94 7400 West Judge Perez Drive Arabi LA 70002 5,560,000
95 2450 Savarn Avenue Valeria LA 70001 8,500,000
96 13855 Superior Road East Cleveland OH 44118 4,060,000
97 701 Gateway Boulevard South San Francisco CA 84050 34,000,000
98 3860 Flagard Boulevard Irving TX 76053 14,900,000
99 3848 Mission Inn Avenue Riverdale CA 92501 18,000,000
100 300 10th Street Clarion IA 80525 2,600,000
101 14158-14255 SW Brigadoon Court Beaverton OR 97005 3,300,000
102 3315 NE 112th Avenue Vancouver WA 96882 4,600,000
103 9600 SW Oak Street Tigard OR 97220 7,370,000
104 520 SW Sixth Avenue Portland OR 97204 8,900,000
105 318 SW Washington Street Portland OR 97204 5,780,000
106 1750 112th Avenue, NE Bellevue WA 95004 16,500,000
107 2811 Keswick Village Court Conyers GA 30012 16,900,000
108 2520 LaJuana Drive Biloxi MS 36531 9,520,000
109 6360 San Felipe Road Houston TX 77057 11,060,000
110 18500 Northchase Drive Houston TX 77080 9,163,050
111 2050 Grayson Drive Grapevine TX 76061 20,600,000
112 38-40 East Colorado Blvd. Pasadena CA 91105 1,120,000
113 857 Tenacity Drive Longmont CO 80504 882,605
114 8411 Cedarwood Avenue Lawrence KS 86046 1,600,000
115 303 Goody Road Bacliff TX 77518 650,000
116 28831 Cabot Road Mission Viejo CA 92603 765,000
117 28821 Cabot Road Mission Viejo CA 92659 745,000
118 326 Truesdale Drive Chula Vista CA 92138 4,060,000
119 188 Main Street Highland Falls NY 10928 1,225,000
120 14901 S. E. 272 Street Kent WA 98042 8,500,000
121 2816 East Hanna Avenue Tampa FL 33610 3,030,000
122 5721-45 Morris Street Philadelphia PA 19144 1,100,000
123 500-502 West Chelton Avenue Philadelphia PA 19144 856,000
124 523-529 West Chelton Avenue Philadelphia PA 19144 1,240,812
125 Various Various VARIOUS various 1,420,000
126 11006 Grissom Lane Dallas TX 75225
127 13777 Bee Street Farmers Branch TX 75234
128 1632 Newport Blvd. Costa Mesa CA 92627 881,000
129 7900 Florin Road Sacramento CA 93826 2,250,000
130 11901 W. McDonald Road Avondale AZ 95323 1,400,000
131 8771 W. Pico Boulevard Los Angeles CA 9?035 1,307,000
132 6760 Minnick Road, 6773 Rapids Road Lockport NY 14094 6,430,000
133 4013 Premier Avenue Memphis TN 35118 2,100,000
134 7156 Winton Way Winton CA 95088 1,850,000
135 7434 Louis Pasteur Drive San Antonio TX 78228 2,900,000
136 360 30th Avenue Santa Cruz CA 95062 2,300,000
137 1722 Mangrove Avenue Chico CA 95826 1,500,000
138 3600 Lendie Drive Wichita Falls TX 76306 1,550,000
139 1280, 1300, 1200 North Johnson Avenue El Cajon CA 92020 6,685,000
140 33301 -33309 1st Avenue South Federal Way WA 98003 3,600,000
141 800 California Street Mountain View CA 94040 5,000,000
142 24922 Mulranda Blvd. Lake Forest CA 92800 2,400,000
143 12285 McNulty Blvd. Philadelphia PA 98118 2,150,000
144 11640, 11880, 11904, 11954 LaCinega Blvd. Del Alta CA 90250 5,400,000
145 2000 Parson Street Costa Mesa CA 92627 3,500,000
146 6820 Lakeside Road West Palm Beach FL 33411 1,255,000
147 20250 Acacia Street Newport Beach CA 92640 3,000,000
148 7230 4th Street North St. Petersburg FL 33702 3,500,000
149 FM 741Towns Road Waco TX 78827 1,950,000
150 2333 North Broadway Santa Ana CA 92708 2,800,000
151 815 - 819 E. Colorado Street Glendale CA 91205 2,235,000
152 30158 Autumn Wood Drive Huntsville AL 35816 2,600,000
153 3085 Raid Road Grand Blanc NJ 48438 15,700,000
154 456 East Mission Road San Marcos CA 92078 1,500,000
155 1500 S. Christopher Columbus Boulevard Philadelphia PA 19147 2,843,500
156 1195 South Diamond Bar Boulevard Diamond Bar CA 91765 1,050,000
157 305-327 East Vernon Drive Normal IL 81761 7,400,000
158 3850-3960 East Patrick Lane Las Vegas NV 89120 1,800,000
159 Various Various Various Various 1,190,000
160 1104 Hershey Street Bloomington IL 61704
161 2 Wiledrob Bloomington IL 61704
162 601 Technology Drive Cecil Township PA 15317 40,900,000
163 2707-2709 Wildwood Circle & 2714-2718
Arlington Avenue Caldwell ID 83605 1,110,877
164 Various Various Various Various 2,925,000
165 8 Lafayette Place Hilton Head Island SC 25926
166 1 Park Lane Hilton Head Island SC 25926
167 28 Hunter Road Hilton Head Island SC 25926
168 849 High Street Palo Alto CA 94301 3,100,000
169 2487 Alum Rock Avenue San Jose CA 95118 4,800,000
170 3860 2nd Avenue Pocatello ID 63204 1,100,000
171 41716,41743 and 41789 Enterprise Circle Tamecula CA 92540 2,600,000
172 2019 NE 179th Street Ridgefield WA 88642 8,950,000
173 2315 Maricopa Street Torrance CA 80500 2,525,000
174 4701 West Pointe Boulevard Oklahoma City OK 73278 5,600,000
175 1180 and 1234 Palmetto Drive Gainesville GA 30500 8,000,000
176 222 North Muller Street Anaheim CA 92801 6,750,000
177 9587 Canoga Avenue Chatsworth CA 91311 3,520,000
178 100 West Jones Road Fostoria OH 44830 6,250,000
179 1403 Carson Road Birmingham AL 35215 2,425,000
180 1182 Redman Street Orlando FL 32639 11,000,000
181 21621 Sandia Avenue Apple Valley CA 92307 1,000,000
182 12400 Ford Road Farmers Branch TX 75234 4,275,000
183 34184 County Line Road Yucaipa CA 92399 1,500,000
184 14596 Olde Highway Bd. Flinn Springs CA 92021 1,350,000
185 46898 Jefferson Street Indlo CA 92301 3,820,000
186 11785 Beltsville Drive Beltsville MD 20705 16,000,000
187 580 Dewdrop Circle Forest Park OH 45240 12,500,000
188 11281 Willows Road Redmond WA 88062 10,500,000
189 3100 Soaring Gulls Drive Las Vegas NV 69128 2,315,000
190 945 W. Manor Drive Nogales AZ 85621 2,850,000
191 4261 Hilary Circle West Palm Beach FL 33408 2,760,000
192 8944 Balboa Avenue San Diego CA 92123 2,700,000
193 8350 S. Drive North Battle Creek MI 49014 1,650,000
194 843 Indian Creek Road Locust Grove GA 30248 4,000,000
195 7212 Kingston Pike Knoxville TN 37819 2,000,000
- ---------------------------------------------------------------------------------------------------------------------------------
Amortization Loan Term LTV Cut-off Lien Loan
No. Cut-off Balance Type (months) Year Built Value Position Purpose
- ---------------------------------------------------------------------------------------------------------------------------------
1 6,462,232 Balloon 120 1999 75.6% First Refinance
2 11,552,472 Balloon 120 1998 52.7% First Refinance
3 3,848,012 Balloon 120 1978 70.0% First Cash Out
4 6,173,055 Balloon 120 1970 73.8% First Purchase
5 6,496,406 Balloon 120 1997 88.0% First Cash Out
6 1,104,762 Balloon 120 1973 77.5% First Refinance
7 2,813,890 Balloon 120 1985 72.2% First Cash Out
8 2,120,255 Balloon 120 1978 73.2% First Refinance
9 1,191,968 Balloon 120 1976 72.5% First Refinance
10 2,495,404 Balloon 120 1999 63.4% First Cash Out
11 674,151 Balloon 120 1985 72.6% First Refinance
12 1,311,241 Balloon 120 1984 71.6% First Refinance
13 3,423,607 Balloon 120 1984 72.8% First Cash Out
14 2,258,256 Balloon 120 1986 72.8% First Refinance
15 855,952 Balloon 120 1982 72.8% First Cash Out
16 562,778 Balloon 120 1981 72.8% First Cash Out
17 1,194,690 Balloon 120 1985 72.8% First Cash Out
18 1,300,561 Balloon 120 1984 72.8% First Cash Out
19 2,009,716 Balloon 120 1987 72.8% First Refinance
20 1,052,706 Balloon 120 1978 76.4% First Purchase
21 1,529,788 Balloon 120 1984 72.6% First Refinance
22 1,502,633 Balloon 120 1988 72.8% First Refinance
23 1,854,021 Balloon 120 1983 72.8% First Cash Out
24 3,105,137 Balloon 120 1986 70.6% First Refinance
25 1,637,843 Balloon 120 1983 83.2% First Refinance
26 1,455,838 Balloon 120 1983 83.3% First Cash Out
27 1,002,617 Balloon 120 1983 68.1% First Refinance
28 3,602,267 Balloon 120 1985 60.1% First Refinance
29 1,840,554 Balloon 120 1955 62.4% First Cash Out
30 1,904,602 Balloon 144 1975 71.2% First Cash Out
31 724,481 Balloon 120 1992 58.6% First Refinance
32 419,811 Balloon 120 1988 50.0% First Refinance
33 1,067,777 Balloon 120 1980 73.0% First Cash Out
34 732,060 Balloon 120 1984 38.6% First Cash Out
35 584,062 Balloon 120 1956 68.7% First Refinance
36 831,019 Balloon 120 1979 73.1% First Refinance
37 691,112 Balloon 120 1981 81.6% First Refinance
38 597,238 Balloon 120 1970 56.9% First Purchase
39 458,518 Balloon 120 1963 61.1% First Refinance
40 313,897 Balloon 120 1996 63.5% First Purchase
41 735,422 Balloon 120 1958 73.6% First Purchase
42 719,020 Balloon 120 1996 54.3% First Cash Out
43 6,965,176 Balloon 120 1997 65.4% First Cash Out
44 3,299,672 Fully AM 120 1978 45.5% First Cash Out
45 2,429,391 Balloon 120 1998 84.6% First Cash Out
46 2,692,608 Balloon 120 1970 66.6% First Refinance
47 13,024,268 Balloon 119 1958 80.6% First Refinance
48 10,385,641 Balloon 120 1999 78.8% First Refinance
49 5,630,612 Balloon 120 1985 82.1% First Refinance
50 1,595,770 Balloon 120 1988 57.0% First Refinance
51 11,051,025 Balloon 120 Various 78.6% First Cash Out
52 0 120 1962 0.0%
53 0 120 1985 0.0%
54 0 120 1985 0.0%
55 7,586,617 Balloon 120 1988 79.8% First Refinance
56 6,977,522 Fully AM 88 1985 63.3% First Refinance
57 6,304,857 Hyper AM 120 1972 63.5% First Purchase
58 5,335,171 Hyper AM 120 1971 63.7% First Purchase
59 7,907,885 Hyper AM 120 1963 67.2% First Purchase
60 11,059,835 Hyper AM 120 1972 84.4% First Purchase
61 7,385,340 Hyper AM 120 1985 71.2% First Purchase
62 8,977,812 Hyper AM 120 1987 89.0% First Purchase
63 3,951,887 Balloon 120 1980 79.6% First Refinance
64 1,791,137 Balloon 120 1983 74.6% First Purchase
65 25,823,693 Balloon 120 1999 79.6% First Refinance
66 5,077,691 Balloon 120 1998 83.6% First Refinance
67 1,088,088 Balloon 120 1998 78.3% First Purchase
68 597,940 Balloon 120 1998 73.5% First Refinance
69 2,387,788 Balloon 120 1988 67.3% First Cash Out
70 2,913,188 Balloon 120 1987 72.8% First Refinance
71 6,870,012 Balloon 120 Various 71.8% First Refinance
72 0 Balloon 120 1938 0.0% First
73 0 Balloon 120 1958 0.0% First Purchase
74 17,945,951 Balloon 120 1972 74.8% First Refinance
75 4,180,415 Balloon 120 1998 68.8% First Cash Out
76 2,231,377 Balloon 120 1976 70.8% First Purchase
77 24,673,859 Balloon 120 1972 64.9% First Purchase
78 2,683,738 Balloon 120 1977 78.8% First Purchase
79 4,133,304 Balloon 120 1911 79.5% First Refinance
80 87,200,000 Balloon 120 1979 86.1% First Refinance
81 2,285,982 Balloon 120 2000 78.2% First Refinance
82 1,722,185 Balloon 120 1999 74.9% First Purchase
83 3,595,505 Balloon 120 1999 78.5% First Refinance
84 12,681,152 Balloon 120 1999 78.5% First Refinance
85 11,202,104 Balloon 120 1984 77.3% First Cash Out
86 3,878,855 Balloon 81 1990 79.6% First Purchase
87 1,834,892 Balloon 120 1984 50.2% First Cash Out
88 1,275,488 Balloon 120 1978 79.7% First Cash Out
89 1,469,445 Balloon 120 1974 45.5% First Cash Out
90 2,167,279 Balloon 120 1965 76.9% First Cash Out
91 1,843,483 Balloon 120 1991 79.1% First Purchase
92 3,150,512 Balloon 120 2000 79.0% First Refinance
93 8,879,713 Balloon 120 1999 70.1% First Refinance
94 6,538,242 Balloon 120 1982 78.1% First Refinance
95 8,491,526 Balloon 120 1963 78.3% First Refinance
96 4,071,982 Balloon 120 1998 78.8% First Purchase
97 33,852,059 Balloon 120 2000 57.5% First Refinance
98 14,854,242 Balloon 120 1978 71.8% First Refinance
99 17,812,607 Balloon 108 1997 62.9% First Purchase
100 2,577,382 Balloon 120 1952 79.3% First Purchase
101 3,295,628 Balloon 120 1991 71.6% First Purchase
102 4,593,859 Balloon 120 1985 75.6% First Purchase
103 7,360,076 Balloon 120 1925 80.4% First Purchase
104 8,891,149 Balloon 120 1910 80.6% First Purchase
105 5,772,331 Balloon 120 1939 87.9% First Purchase
106 16,483,787 Balloon 120 1996 78.7% First Purchase
107 18,900,000 Balloon 120 1995 79.9% First Purchase
108 9,520,000 Balloon 120 1970 80.0% First Refinance
109 11,080,000 Balloon 120 1979 80.0% First Refinance
110 9,163,050 Balloon 120 1997 70.5% First Refinance
111 20,800,000 Balloon 120 1993 80.0% First Refinance
112 1,082,733 Balloon 120 2000 37.3% First Refinance
113 658,990 Balloon 120 1984 71.4% First Refinance
114 1,788,888 Balloon 120 1975 79.4% First Refinance
115 542,802 Balloon 120 1939 78.7% First Refinance
116 749,007 Balloon 120 1939 85.1% First Refinance
117 739,274 Balloon 120 1999 62.1% First Refinance
118 3,938,275 Balloon 120 1999 66.5% First Refinance
119 1,216,585 Balloon 120 1999 70.5% First Purchase
120 6,781,942 Balloon 120 1985 71.2% First Refinance
121 3,046,659 Balloon 120 1958 63.8% First Refinance
122 1,034,247 Balloon 120 1930 78.1% First Refinance
123 843,983 Balloon 120 1930 78.9% First Refinance
124 1,224,812 Balloon 120 1920 78.0% First Refinance
125 1,408,080 various 74.3% Refinance
126 1971
127 Balloon 120 1982 First
128 973,073 Balloon 120 1970 64.9% First Refinance
129 2,225,659 Balloon 120 1988 69.5% First Purchase
130 1,385,782 Balloon 120 1978 72.4% First Purchase
131 1,300,973 Balloon 120 1937 54.0% First Refinance
132 3,096,757 Balloon 120 1999 76.5% First Refinance
133 2,075,348 Balloon 120 1964 69.2% First Refinance
134 1,640,209 Balloon 120 1985 70.6% First Refinance
135 2,648,768 Balloon 120 1985 53.2% First Refinance
136 2,387,654 Balloon 120 1932 70.4% First Purchase
137 1,492,603 Balloon 120 1958 58.3% First Purchase
138 1,830,488 Balloon 120 1971 71.2% First Purchase
139 6,627,050 Balloon 120 1993 72.8% First Refinance
140 3,579,573 Balloon 120 1980 67.5% First Purchase
141 4,838,778 Balloon 120 2000 62.5% First Const. Takeout
142 1,978,725 Fully Amortizing 120 1972 30.0% First Refinance
143 2,238,795 Balloon 120 1986 74.6% First Purchase
144 6,370,297 Balloon 120 2000 71.7% First Refinance
145 3,450,711 Balloon 120 1968 62.2% First Refinance
146 1,278,859 Balloon 120 1988 63.9% First Refinance
147 2,885,443 Balloon 120 1990 65.0% First Purchase
148 3,450,821 Balloon 120 1949 75.7% First Refinance
149 1,839,711 Balloon 84 1999 79.2% First Purchase
150 2,784,019 Balloon 120 1967 63.0% First Refinance
151 2,223,743 Balloon 120 1885 73.8% First Refinance
152 2,388,168 Balloon 120 1884 78.4% First Refinance
153 15,842,813 Balloon 120 1855 74.5% First Refinance
154 1,459,428 Balloon 120 1922 73.7% First Refinance
155 2,827,838 Balloon 119 1922 89.0% First Refinance
156 1,045,100 Balloon 120 1986 33.2% First Purchase
157 7,351,510 Balloon 120 2000 78.4% First Refinance
158 1,490,976 Balloon 120 1996 67.8% First Const. Takeout
159 1,184,449 Balloon 120 Various 76.8% First Refinance
160 1988 First
161 1978 First
162 10,817,504 Balloon 120 2000 70.0% First Const. Takeout
163 1,108,488 Balloon 120 1995 7.4% First Refinance
164 2,913,677 Balloon 120 Various 73.3% First Purchase
165 1997
166 1985
167 1998
168 3,007,409 Balloon 120 1924 55.4% First Refinance
169 4,688,358 Balloon 120 2000 71.5% First Const. Takeout
170 1,089,144 Balloon 180 1984 88.1% First Refinance
171 2,791,285 Balloon 120 1990 80.7% First Refinance
172 8,824,885 Balloon 120 1998 76.8% First Const. Takeout
173 2,909,079 Balloon 120 1976 74.8% First Refinance
174 5,579,602 Balloon 120 2000 88.5% First Purchase
175 7,870,079 Balloon 120 1991 74.5% First Purchase
176 5,729,682 Balloon 120 1971 73.5% First Refinance
177 3,609,426 Balloon 120 1977 70.2% First Purchase
178 8,172,130 Balloon 120 1884 74.3% First Purchase
179 2,417,206 Balloon 120 1974 75.2% First Refinance
180 10,959,222 Balloon 120 1974 78.8% First Refinance
181 998,522 Balloon 120 1989 52.3% First Refinance
182 4,264,098 Balloon 120 1998 74.8% First Const. Takeout
183 1,495,494 Balloon 120 1957 72.2% First Refinance
184 1,348,511 Balloon 120 1980 85.0% First Refinance
185 3,008,101 Balloon 120 1987 79.8% First Purchase
186 15,972,832 Balloon 120 1989 51.5% First Refinance
187 12,461,491 Balloon 120 1965 78.6% First Refinance
188 10,461,491 Balloon 120 1965 74.4% First Refinance
189 2,311,246 Balloon 120 1997 66.5% First Purchase
190 2,545,756 Balloon 120 1971 75.1% First Refinance
191 2,739,220 Balloon 120 1856 78.4% First Refinance
192 2,686,211 Balloon 120 1957 45.5% First Refinance
193 1,635,848 Balloon 120 2000 89.9% First Purchase
194 3,882,202 Balloon 120 1970 67.7% First Purchase
195 1,994,488 Balloon 120 1957 72.5% First Purchase
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY BE
DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE POLICY.
DEFINED TERMS APPEAR IN BOLDFACE TYPE.
In consideration of the payment of the premium, in reliance upon the statements
in the Declarations and Secured Creditor Impaired Property Application
incorporated by reference and made a part hereof, and pursuant to all of the
terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the POLICY
PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on) under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the INSURED
becomes legally obligated to pay as a result of CLAIMS first made against the
INSURED and reported to the Company, in writing, during the POLICY PERIOD, for
BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from POLLUTION
CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
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1
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend any
CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such Claim, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in item 4 of the Declarations.
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to
defend the INSURED at the Company's expense, the attorney fees and all other
litigation expenses the Company must pay to that counsel are limited to the
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 competency,
including experience in defending CLAIMS or suits similar to the one pending
against the INSURED and to require such counsel to have errors and omissions
insurance coverage. As respects to such counsel, the INSURED agrees that counsel
will timely respond to the Company's request for information regarding the
CLAIM.
Furthermore, the INSURED may at any time, by its signed consent, freely
and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy that
the INSURED provide the Company with notice of DEFAULT and POLLUTION CONDITIONS,
or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
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2
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers filed
with a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to
use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the limits of
coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMS. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the
Copyright, American International Group, Inc., 2000
3
course of investigation or defense, the Company may require written statements
or the INSURED'S attendance at meetings with the Company. The INSURED must
reasonably assist the Company in effecting settlement, securing and providing
evidence and obtaining the attendance of witnesses, all without charge to the
Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative lines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED under
any contract or agreement, unless the liability of the INSURED would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any workers
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its parent,
subsidiary or affiliate arising out of and in the course of employment by the
INSURED or its parent, subsidiary or affiliate. This exclusion applies (1)
whether the INSURED may be liable as an employer or in any other capacity; and
(2) to any obligation to share damages with or repay third parties that must pay
damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to the
INSURED'S intentional, knowing, 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.
F. arising from POLLUTION CONDITIONS resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the POLLUTION
CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY, and not otherwise specifically excluded by
endorsement to this Policy, if as of such date the INSURED knew that such
POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed to
disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an INSURED
under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or
Copyright, American International Group, Inc., 2000
4
affiliate, unless such costs, charges or expenses are incurred with the prior
written approval of the Company in its sole discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy
shall not exceed the "Total all Losses" stated in Item 23 of the Declarations.
The purchase of an EXTENDED REPORTING PERIOD pursuant to Section VII. of this
Policy shall not serve to reinstate or increase the "Total all Losses".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in Paragraph
A. above. the most the Company will pay in excess of the deductible amount shown
in Item 4 of the Declarations for each LOSS under Coverage A and B, and for all
CLEAN-UP COSTS arising from the same, continuous or related POLLUTION CONDITIONS
under Coverage C, is the "Each Loss" limit of liability shown in Item 3 of the
Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a Claim for BODILY INJURY,
PROPERTY DAMAGE or CLEAN-UP COSTS is first made against the INSURED and reported
to the Company during this POLICY PERIOD, all CLAIMS for BODILY INJURY, PROPERTY
DAMAGE or CLEAN-UP COSTS arising from the same, continuous or related POLLUTION
CONDITIONS, which are made against the INSURED and reported under a subsequent
Secured Creditor Impaired Property Policy issued by the Company or its
affiliate, shall be deemed to have been first made and reported under this
Policy and shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1 above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such CLAIM
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related POLLUTION
CONDITIONS shall be subject to one "Each Loss" limit of liability. In the event
coverage is
Copyright, American International Group, Inc., 2000
5
provided under more than one of Coverages A, B and C, only one "Each Loss" limit
stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A,. and
B, above, this Policy is to pay all LOSS in excess of the "Each Loss" Deductible
amount stated in Item 4 of the Declarations. The Deductible amount includes
investigation and defense costs, charges and expenses, and applies to all LOSS
arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any
payment of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN, including
without limitation, any guarantor therefor, the holder of any ownership interest
in an INSURED PROPERTY and any other person, entity or organization controlled
by or under common control of the obligor.
C. CLAIM means a written demand received by the insured seeking a remedy
and alleging liability or responsibility on the part of the INSURED for LOSS
under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state thereof,
or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY. LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or other security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a scheduled,
periodic or final payment by the due date under the COMMERCIAL REAL ESTATE LOAN
or the
Copyright, American International Group, Inc., 2000
6
BORROWER'S failure to comply with items designated as the causes or events of
default as provided by the terms of the COMMERCIAL REAL ESTATE LOAN. The DEFAULT
shall be deemed to occur on the day after such due date under the COMMERCIAL
REAL ESTATE LOAN provided that the DEFAULT was not cured within the applicable
grace period as provided by the terms of the COMMERCIAL REAL ESTATE LOAN. For
purposes of this Policy, the mere presence of a POLLUTION CONDITION shall not be
deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including but
not limited to statutes, regulations, rules, ordinances, guidance documents, and
governmental or administrative orders and directives) which are applicable to
POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. FORECLOSURE means taking title to an interest in the INSURED PROPERTY,
Leasehold or FIXED ASSETS through the enforcement of a lien, mortgage, deed of
trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN, whether
through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any director,
officer, partner or employee thereof while acting within the scope of his or her
duties as such, and any such additional INSURED added by endorsement to this
Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS or
LEASEHOLD, scheduled in Item 5, of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the date
of Default, including principal and accrued interest from the
dale of Default until the date that the OUTSTANDING BALANCE is
paid, plus interest on any advances of scheduled monthly payments
made by the Insured from the date of DEFAULT, plus advances and
interest on advances for PROPERTY PROTECTION actually paid by the
INSURED pursuant to the COMMERCIAL REAL ESTATE LOAN or, if
applicable, a POOLING AND SERVICING AGREEMENT, Such advances and
interest on advances made for PROPERTY PROTECTION are limited to
ten (10) percent of the OUTSTANDING BALANCE on the date of
DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements of
compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP Costs; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment of
CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
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7
N. NAMED INSURED means the party, person or entity named in Item 1 of the
Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall nor include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the Declarations
or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED PROPERTY at
the NAMED INSURED'S written request, but solely with respect to
that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal, release
or escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, in concentrations or
amounts exceeding maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority granted by
ENVIRONMENTAL LAWS, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
2. with respect to Coverage B, the discharge, dispersal, release, or
escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
Copyright, American International Group, Inc., 2000
8
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of parties
other than the INSURED, including the resulting loss of use or
diminution in value thereof;
2. Loss of use, but not diminution in value, of tangible property of
parties other than the INSURED, which has not been physically
injured or destroyed:
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect the
INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph 8.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to replace
Coverage B which applies to a CLAIM otherwise covered under Coverage B, the
NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination of coverage in which to provide written notice to
the Company of CLAIMS first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the CLAIM arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3 below,
except in the event of nonpayment of premium.
Copyright, American International Group, Inc., 2000
9
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, it purchased in accordance with the provisions
contained in Paragraph 2 below, will be deemed to have been made
on the last day of the POLICY PERIOD, provided that the CLAIM
arises from POLLUTION CONDITIONS that commenced before the end of
the POLICY PERIOD and is otherwise covered by this Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from
termination of coverage under this Policy for any INSURED
PROPERTY provided that the NAMED INSURED:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended Reporting
Period may not be canceled, provided that all other terms
and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the NAMED
INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations of
this Policy of a location which was an INSURED PROPERTY, at
the INSURED'S written request, but solely with respect to
that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the NAMED
INSURED for not more than 200% of the premium the Company has
charged for the INSURED PROPERTY for which the Extended Reporting
Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to the SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
Copyright, American International Group, Inc., 2000
10
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company shall be
subrogated to all the INSURED'S rights of recovery therefor against any person
or organization, with the exception of the BORROWER, provided that if the
Company indemnities the INSURED for the OUTSTANDING BALANCE under Coverage A,
the Company reserves its right of FORECLOSURE against the BORROWER.
2. The INSURED shall execute and deliver instruments and papers and do
whatever else is reasonably necessary to secure such rights including without
limitation, assignment of the INSURED'S rights against any person or
organization, with the exception of the BORROWER, who caused POLLUTION
CONDITIONS on account of which the Company made any payment under this Policy.
3. Any recovery as a result of subrogation proceedings shall accrue
first to the INSURED to the extent of any LOSS in excess of the limit of
coverage, then to the Company to the extent of its payment under the policy, and
then to the INSURED to the extent of its Deductible. Expenses incurred in such
subrogation proceedings shall be apportioned among the interested parties in the
recovery in the proportion that each interested party's share in the recovery
bears to the total recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery shall serve to
reinstate the "Total all Losses" limit of liability stated in Item 3 of the
Declarations, but only to the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's rights of
Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by surrender
thereof to the Company or any of its authorized agents or by mailing to the
Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of
premium by mailing to the NAMED INSURED at the address shown in the Policy,
written notice stating when not less than ten (10) days thereafter cancellation
shall be effective. Proof of mailing of notice described in this Condition E,
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
Copyright, American International Group, Inc., 2000
11
NAMED INSURED or by the Company shall be equivalent to mailing. If the NAMED
INSURED cancels, earned premium shall be computed in accordance with the
customary short rate table. If the Company cancels, earned premium shall be
computed pro rata. Premium adjustment may be either at the time cancellation is
effected or as soon as practicable after cancellation becomes effective, but
payment or tender of unearned premium is not a condition of cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void it, whether
before or after LOSS is incurred or a CLAIM is first made, the INSURED has
willfully concealed or misrepresented any tact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not affected
unless any other insurance applicable to LOSS covered by
this Policy is also primary. Then, we will share with all
other insurance by the method described in paragraphs (b)
and (c) below.
(b) It other primary insurance permits contribution by equal
shares, we will follow this method also. Under this approach
each insurer contributes equal amounts until it has paid its
applicable limit of insurance or none of the loss remains,
whichever comes first.
(c) If any other insurance does not permit contribution by equal
shares, we will contribute by limits. Under this method,
each insurer's share is based on the ratio of its applicable
limit of insurance to the total applicable limits of
insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
Copyright, American International Group, Inc., 2000
12
INSURED PROPERTY for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The insured agrees to provide appropriate personnel to
assist the Company's representatives during any Inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED INSURED
agrees that the statements in the Declarations and Secured Creditor Impaired
Property Application are its agreements and representations, that this Policy is
issued in reliance upon the truth of such representations and that this Policy
embodies all agreements existing between any INSURED and the Company or any of
its agents relating to this Insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right under
this Policy:
1. to join the Company as a party or otherwise bring the Company
into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms have
been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimant's legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the INSURED'S
estate shall not relieve the Company of any of its obligations hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the arbitration
shall be conducted in New York, New York. The arbitrators shall give due
consideration to the general principles of New York law in the construction and
interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
Copyright, American International Group, Inc., 2000
13
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its reasoning,
shall be provided simultaneously to both parties and shall be binding on them.
The arbitrators' award shall not include attorney fees or other costs. Judgment
on the award may be entered in any court of competent jurisdiction, each party
shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M, above, it is agreed that 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
Nothing in this condition constitutes or should be understood to constitute a
waiver of the Company's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United Stated
District Court, or to seek a transfer of a case to another court as permitted by
the laws of the United States or of any state in the United States, it is
further agreed that service of process in such suit may be made upon General
Counsel, Legal Department, American International Specialty Lines Insurance
Company, 70 Pine Street, New York, New York 10270, or his or her representative,
and that in any Suit instituted against the Company upon this contract, the
Company will abide by the final decision of such court or of any appellate court
in the event of any appeal.
Further, pursuant to any statute of any state, territory, or district of
the United States which makes provision therefore, the Company hereby designates
the Superintendent, Commissioner, Director of Insurance, or other officer
specified for that purpose in the statute, or his or her successor or successors
in office 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 any beneficiary hereunder arising out of this contract of insurance,
and hereby designates the above named General Counsel as the person to whom the
said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS - In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to otter coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
Copyright, American International Group, Inc., 2000
14
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by its
president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
------------------------------ --------------------------------
SECRETARY PRESIDENT
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
(A Capital Stock Insurance Company, herein called the Company)
175 Water Street, Twelfth Floor
New York, New York 10038
[AISL LOGO]
A Member Company of
American International
Group, Inc.
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as trustee for the
holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2001-1
AND 100 North Tryon Street, 11th Floor
POST OFFICE: Charlotte, NC 28255
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED
COVERAGE. PLEASE READ CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(PORTFOLIO)
DECLARATIONS
POLICY NUMBER: 341 76 85
ITEM 1: NAMED INSURED Wells Fargo Bank of Minnesota, N.A. as trustee for the
holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2001-1
ADDRESS 100 North Tryon Street, 11th Floor
Charlotte, NC 28255
ITEM 2: POLICY PERIOD: FROM 5/29/01 TO equal to each specific property's
remaining loan Term (as listed on
Schedule A) plus 7 years
12:01 A.M. Standard time at the address of the
Named Insured shown above.
ITEM 3: LIMITS OF LIABILITY Each Loss $20,000,000
Total all Losses $20,000,000
ITEM 4: DEDUCTIBLE: Each Loss $0
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
ITEM 5: INSURED PROPERTY: 315 Park Avenue
315 Park Avenue South
New York, NY
ITEM 6: POLICY PREMIUM: $ 9,999
Broker: Environmental Insurance Brokerage Services
226 Lowell Street, B-4A
Wilmington, MA 01887
ENDORSEMENTS: See Forms Schedule
/s/ Armand Pepin
-----------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
Copyright, American International Group, Inc., 2000
NOTICE: THIS INSURANCE IS NOT LICENSED BY THE STATE OF NEW YORK
FORMS SCHEDULE
--------------
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders
of Banc of America Commercial Mortgage Inc, Commercial Mortgage
Pass-Through Certificates, Series 2001-1
POLICY NO: 341 76 85
EFFECTIVE 12:01AM: 5/29/01
FORM NAME FORM NUMBER
- --------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75793 (2/00)
Schedule of Insured Properties
Minimum Earned Premium
Secured Creditor Impaired Property Endorsement 75016 (5/00)
Additional Named Insured Endorsement
Schedule A Endorsement
ENDORSEMENT NO. 1
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 85
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
MINIMUM EARNED PREMIUM ENDORSEMENT
----------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the following minimum earned premium will apply:
Binding Coverage Minimum Premium Earned 100%
The premium will be 100% earned at inception of the Policy.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
-----------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM, 5/29/01
FORMS A PART OF POLICY NO.: 341 76 85
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders
of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A. is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B, or POLLUTION CONDITIONS with respect to
Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant:
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph G is deleted in its entirety.
4. Section VI. DEFINITIONS, paragraph D, CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes or events of default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided that
the DEFAULT was not cured within the applicable grace period as provided by
the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS MEANS:
(1) with respect to Coverages A and C, the discharge,
dispersal, release or escape of any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, hazardous substances, and waste materials into or
upon land, or any structure on land, the atmosphere or any watercourse or
body of water, including groundwater, resulting in concentrations or
amounts exceeding maximum levels allowed by applicable ENVIRONMENTAL LAWS,
or by governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
POLLUTION CONDITIONS also includes the discharge, dispersal, release or
escape of radon into any structure or on land.
(2) with respect to Coverage B, the discharge, dispersal,
release, or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on land,
the atmosphere or any watercourse or body of water, including groundwater,
provided such conditions are not naturally present in the environment in
the concentration or amounts discovered. POLLUTION CONDITIONS also includes
the discharge, dispersal, release or escape of radon into any structure or
on land.
5. Section VIII. CONDITIONS, paragraph A, ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of such
assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
------------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 85
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
LESSER OF CLEAN-UP COSTS OR OUTSTANDING BALANCE ENDORSEMENT
-----------------------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that Section VI, DEFINITIONS, paragraph M. LOSS is deleted
in its entirety and replaced with the following:
M. LOSS means:
1 With respect to Coverage A, a DEFAULT and POLLUTION CONDITIONS with
the amount of loss calculated as the lesser of:
(a) the OUTSTANDING BALANCE on the date of DEFAULT, including principal1
and accrued interest from the date of DEFAULT until the date that the
OUTSTANDING BALANCE is paid, plus interest on any advances of
scheduled monthly payments made by the INSURED from the date of
DEFAULT, plus advances and interest on advances: for PROPERTY
PROTECTION actually paid by the INSURED pursuant to the COMMERCIAL
REAL ESTATE LOAN, or, if applicable, a POOLING AND SERVICING
AGREEMENT. Such advances and interest on advances made for PROPERTY
PROTECTION are limited to ten (10) percent of the OUTSTANDING BALANCE
on the date of DEFAULT; or
(b) CLEAN-UP COSTS, provided, however, that if CLEAN-UP COSTS are less
than the OUTSTANDING BALANCE, the INSURED must foreclose on the
INSURED PROPERTY prior to the Company's payment of LOSS.
2. With respect to Coverage B, (a) monetary awards or settlements of
compensatory damages for BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP
COSTS, (b) CLEAN-UP COSTS: and (c) costs, charges and expenses
incurred in the defense, investigation and adjustment of CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
------------------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (in states where applicable)
ENDORSEMENT NO. 4
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 85
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
ADDITIONAL INSURED(S) ENDORSEMENT
---------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the following entity(ies) is (are) included as an
additional INSURED(S). Coverage for such additional INSURED(S) applies under
this Endorsement:
1. Solely to the additional INSURED'S liability arising out of the NAMED
INSURED'S ownership, security interest in, operation, maintenance or use of
the INSURED PROPERTY(IES) and
2. Only if the additional INSURED is named in a suit as a co-defendant with
the NAMED INSURED, alleging the additional insured is liable on the basis
described in paragraph 1 above.
ADDITIONAL INSURED(S)
---------------------
GMAC Commercial Mortgage Corporation, as Master Servicer for Wells Fargo Bank
of Minnesota, N.A. as Trustee for the registered certificate holders of
Commercial Mortgage Pass-Through Certificates, Series 2001-1
Lennar Partners, Inc. as Special Servicer for GMAC Commercial Mortgage
Corporation, as Master Servicer for Wells Fargo Bank of Minnesota, NA. as
Trustee for the registered certificate holders of Commercial Mortgage
Pass-Through Certificates, Series 2001-1
All other terms and conditions remain unchanged.
/s/ Armand Pepin
-----------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
SCHEDULE A
- ---------------------------------------------------------------------------------------------------------------
No. Loan Number Property Name Property Type
- ---------------------------------------------------------------------------------------------------------------
1 51020 Premier Plaza Shopping Center Retail
2 51084 Ballantyne Commons East Retail
3 51225 2815 Camino Del Rio Building Office
4 51674 Shady Grove Shopping Center Retail
5 51872 Comfort Suites-BWI Airport Hotel
6 51833 Courtright Lane Apartments Multifamily
7 51835 Park Plaza Shopping Center Retail
8 51837 Capital Mini-Stroage #2 Mini Storage
9 61838 South Charleston Mini-Storage Mini Storage
10 51941 Real Property Services Office Building Office
11 51942 Clearlake Pines Apartments II Multifamily
12 51943 Elmwood Apartments II Multifamily
13 51944 Woodland Apartments I & II Multifamily
14 51945 Sky Pines Apartments Multifamily
15 51948 Deerwood Apartments Multifamily
16 51947 Brandywine Apartments East Multifamily
17 51948 Pine Knoll Apartments of Clayton County Multifamily
18 51849 Sunnyside Apartments Multifamily
19 51950 King's Colony Apartments Multifamily
20 51951 Laurel Court Apartments Multifamily
21 51952 Woodlands Apartments of Columbia II Multifamily
22 51953 Harvest Grove Apartments Multifamily
23 51954 Cedarwood Apartments I & II Multifamily
24 51955 Cherry Glen Apartments I & II Multifamily
25 51956 Sherbrook Apartments Multifamily
26 51957 Elmtree Park Apartments Multifamily
27 51958 Fashion Bug Wonder Bread Retail
28 51973 Desertbrook Apartments Multifamily
29 51974 Seattle Mini Storage Mini Storage
30 51977 Aida Jean Apartments Multifamily
31 51978 Renaissance Plaza Office
32 51979 Broadway Shoppette Retail
33 51980 Southtown Blvd. Commercial Building Industrial
34 51981 The Fur Plaza Retail
35 51982 Lantam Arms Apartments Multifamily
36 51983 Image Wax Warehouse Industrial
37 51984 Freeway VIII Central Retail
38 51985 Mountain View Mobile Home Park Mobile Home
39 51986 Windmill Courts Apartments Multifamily
40 51987 Prime Commercial Parners-Burley Honk's 99 Cent Retail Retail
41 51989 Parkside Manor Apartments Multifamily
42 51990 Lakamont Office Bldg. Office
43 52141 Tech Center Plaza Office
44 52336 Downtown Mini Storage Mini Storage
45 52387 Magna Post Office Office
46 52536 Manyard's Property Retail
47 52533 Marriott Courtyard - Embassy Row Hotel
48 52587 Marlboro Village Center Hotel
49 53079 Colony Apartments Multifamily
50 53127 Elliot & Price Mini Storage Mini Storage
51 53169 Columbia Apartment Portfolio Multifamily
52 53169 Columbia Apartment Portfolio - Tiger Village Apts Multifamily
53 53169 Columbia Apartment Portfolio - Holiday House Apts. Multifamily
54 53169 Columbia Apartment Portfolio - Gatehouse Apts. Multifamily
55 53247 Fountain Court Apartments Multifamily
56 53343 Aiea Shopping Center Retail
57 53408 Cedar Gardens Apartments/Kushner Multifamily
58 53407 Cedar Towers Apartments/Kushner Multifamily
59 53410 Colonial Apartments/Kushner Multifamily
60 53411 Colonial Pines Apartments/Kushner Multifamily
61 53412 Country Village Apartments Kushner Multifamily
62 53414 Eastampton Gardens Apartments Kushner Multifamily
63 53509 Goose Creek Apartments Multifamily
64 53529 Hackensack Industrial Industrial
65 53531 One Lake Park Office Building Office
66 53552 A-1 Self Storage Mini Storage
67 53570 CVS - Trenton, TN Retail
68 63630 Westwood Heights Apartments Multifamily
69 53878 Nation's Capital Archives Industrial
70 53749 Caledon Woods Professional Park Bldgs 3 & 11 Office
71 53806 Ball Plastics/Motts Warehouse - Summary Industrial
72 53808 Motts Warehouse Industrial
73 63808 Ball Plastics Warehouse Industrial
74 53879 Talley Plaza Office
75 53894 Merchants Row Mall Retail
76 53985 Spring Park Shopping Center Retail
77 53967 PCS Holdings Corp. Office Building Office
78 54028 Westwood Apartments Multifamily
79 54055 Keystone Industrial Park Industrial
80 54058 315 Park Avenue Office
81 54109 Sandalwood Apartments Multifamily
82 64134 Holland Boone Shopping Center Retail
83 64141 Sav-On Drug Store No. 5687 Retail
84 54221 Eagle One Distribution Warehouse Industrial
85 34221 Eagle Two Distribution Warehouse Industrial
86 54228 Westport Commons Apartments Multifamily
87 54297 Sam's Club - Yuma AZ Retail
88 54321 Parkside I & II Multifamily
89 54322 Vintage Plaza Retail
90 64948 Vogue Apartments Multifamily
91 54449 French Quarter Multifamily
92 54473 Crowfield Plaza Shopping Center Retail
93 54503 Gough & Fall Apartments Multifamily
94 54538 Arahl Shopping Center - Winn Dixie # 1434 Retail
95 54608 Severn Place Office Building Office
96 64625 Lake Park Tower Apartments Multifamily
97 54658 701 Gateway Office Building Office
98 64864 Freeport Office Center IV Office
99 64874 Historic Mission, Inc. Hotel
100 64700 EDS Customer Relationship Management Inc. Building Industrial
101 34739 Northwest-Beaverton Center Office
102 51740 Northwest-Vancouver Business Park Industrial
103 54742 Northwest-Plaza West Office
104 54745 Northwest-Cascade Building Office
105 54748 Northwest-Spalding Building Office
106 54748 Northwest -Hidden Valley Office
107 54781 Keswick Village Apartments Multifamily
108 54812 RCA- Lexington Apartments Multifamily
109 64813 RCA - Regency Arms Multifamily
110 64814 RCA - Royal Phoenician Apartments Multifamily
111 51816 RCA-Royal St. Moritz Apartments Multifamily
112 600012 38-40 Colorado Blvd. Retail
113 600055 Prospect Office Building Office
114 245990123 Cedarwood Apartments Multifamily
115 400003143 Keystone, MHP Mobile Home Park
116 416000149 Saddleback Technology Park #2 Industrial
117 415990127 Saddleback Technology Park #1 Industrial
118 415990105 Vanguard Self Storage Self-Storage
119 276000145 Rite Aid Highland Falls Retail
120 302000148 Lake Meridian Apartments Multifamily
121 430990121 Electric Machinery Enterprises Industrial
122 410690031 Morris Manor Apts. Multifamily
123 410990003 Chadlan Arms Apartments Multifamily
124 410890032 President & Bel Air Apts. Multifamily
125 430890126 Grissom-Bee Street Warehouses (Roll-up) Industrial
126 430590128A Grissom Lane Office Warehouse Building Industrial
127 430990128B Bee Street Office Warehouses Building Industrial
128 295000135 US Storage Centers, Newport Self-Storage
129 330000??? Southpoint Shopping Center Retail
130 400000154 Country Hills Mobile Estates Mobile Home Park
131 302000148 Pico Boulevard Retail
132 400000162 Surburban Acres-Realty Estates Mobile Home Park
133 400000141 Premier Distribution Industrial
134 302000163 The Sierras Multifamily
135 280990122 Pyramid Plaza Office
136 400000183 Snug Harbor MHP Mobile Home Park
137 308000170 Mangrove Square Retail
138 400990118 Sunrise MHP Mobile Home Park
139 415000152 Center Pointe Business Park Industrial
140 800000173 Westside Center Office
141 304000155 800 California Street Office
142 300980018 Kimberly Gardens, MHP Mobile Home Park
143 275000160 McNulty Road Industrial
144 400000169 Airport Commerce Center Industrial
145 415000195 Westbay Apartments Multifamily
146 615000171 API Facility Office
147 24000220 Acacia Court Office
148 400000181 Hollywood MHP Mobile Home Park
149 400000188 Country Homes Village MHP Mobile Home Park
150 240000167 North Broadway Office Office
151 415000183 Glendale Office Office
152 400000201 Autumn Wood Apartments Multifamily
153 8200001B0 Weistech Industrial Park Industrial
154 275850124 Morally Wholesale Design Center Industrial
155 275950124 Dickinson Square Office
156 415000207 Diamond Bar Plaza Retail
157 820000198 Vernon Stables Multifamily
158 309090203 Patrick Professional Plaza Office
159 820000210 Hershey & Wiledrob Apts. Roll Up Multifamily
160 820000210A Hershey Apartments Multifamily
161 8200002108 Wiledrob Apartments Multifamily
162 312000210 Stealth II Office
163 410000198 Baycrest Apartments Multifamily
164 100000215 Prudential, Stoneworks & Carewell Buildings Various
165 100000215A Prudential Office Building Office
166 1000002158 Carewell Office Building Office
167 1000002150 Stoneworks Showroom Industrial
168 310000302 High Street Office Office
169 302000168 Alum Rock Self Storage Self-Storage
170 440000208 Intermountain Self Storage Self-Storage
171 311000205 Enterprise Court Office
172 600000218 Whipple Creek Apartments Multifamily
173 302000206 Torrance Self Storage Self-Storage
174 240000204 ABI Distribution Center Industrial
175 100000225 Industrial Park South Industrial
176 415000222 Bassom Square Apartments Multifamily
177 314000202 Canoga Avenue Industrial Industrial
178 300000248 Quality Distribution Center Industrial
179 400000228 Carson Crest Apartments Multifamily
180 400000262 Lake Jasmine Apartments Multifamily
181 15000221 Mountain View ??? MHC Mobile Home Park
182 31100021P Buchanan Visual Communications Industrial
183 400000231 Holiday Rancho MHP Mobile Home Park
184 400000203 Flinn Springs MHP Mobile Home Park
185 415000242 La Qulpta Springs Apartments Multifamily
186 250009223 Calverton Office Building #5 Office
187 100000268 Forest Park Apartments Multifamily
188 800000214 Willows Corporate Center Office
189 400000275 Soaring Gulls Office Building Office
190 400000287 Mariposa Manor MHO Mobile Home Park
191 400000229 Marlboro Courts MHP Mobile Home Park
192 430000217 Balboa Boulevard Building Industrial
193 308000248 Quality Stones Inc. -- BattleCreek, MI Retail
194 400000255 Indan Creek MHO Mobile Home Park
195 318000261 Kingston Pike Retail
- ------------------------------------------------------------------------------------------------------------------------------------
Original
No. Property Address Property City State Zip Code Prin. Balance
- ------------------------------------------------------------------------------------------------------------------------------------
1 1301-1321 W. Government Rd Brandon MS 39042 5,544,000
2 13007 John J. Delaney Dr. Charlotte NC 28277 14,750,000
3 2815 Camino Del Rio South San Diego CA 92108 3,850,000
4 2200 West Shady Grove Road Irving TX 75080 5,200,000
5 815 Elkridge Landing Road Linthicum MD 21090 6,580,000
6 2269 Courtright Road Columbia OH 43233 1,140,000
7 789 Hebron Road Heath OH 43056 2,800,000
8 410 56th Street Charleston WV 28004 2,173,000
9 4128-4200 Kanawha Turnpike South Charleston WV 25009 1,221,000
10 816 W. Brooks Avenue North Las Vegas NV 88030 2,582,000
11 2600 Clearlake Road #18A Cocoa FL 38222 800,000
12 5111 Elmhurst Road #3 West Palm Beach FL 33417 1,350,000
13 2909 Burroughs Drive #7 Orlando FL 32816 3,625,000
14 4990 North Lane #902 Orlando FL 32803 2,325,000
15 611 Mt. Homer Road Eusis FL 32728 681,250
16 416 19th Street, SE Winter Haven FL 33684 6,000,000
17 7393 Tara Road Jonesboro GA 30236 1,230,000
18 809 West 29th Street Tilton GA 31784 1,342,000
19 1425 King George Blvd. Savannah GA 31419 2,100,000
20 125 St. Paul Drive Fremont OH 43420 1,125,000
21 6054 Deerbrook Lane Columbus OH 43213 1,575,000
22 5239 Harvestwood Lane Gahanna OH 43230 1,850,000
23 1306 Cedarbrook Drive Goshen IN 46526 1,850,000
24 2752 Cherry Glen Way Indianapolis IN 46227 3,200,000
25 8026 McFarland Court Indianapolis IN 48227 1,888,250
26 11023 Elmtree Park Dr. Indianapolis IN 48229 1,500,000
27 2605 East Main Street Plainfield IN 46183 1,025,000
28 3703 West Kannawick Avenue Kennawick WA 99306 3,187,000
29 1100 Poplar Place South Seattle WA 98144 1,873,000
30 2860 & 2882 South 200 East Street South Salt Lake UT 84115 1,949,000
31 1644-1684 SW Willemette Falls West Linn CA 97068 750,000
32 5550-5555 S. Broadway Littleton CO 80121 430,000
33 1851 Southtown Blvd. Morraina (Dayton) OH 45409 1,087,500
34 4830-4846 Sunrise Highway Sayville NY 11782 750,000
35 648 Riverview Terrace Dayton OH 45407 600,000
36 1040 Wabash Avenue Chesterton IN 48304 600,000
37 20007 44th Avenue West Lynnwood WA 98038 700,000
38 3109 East Mulberry Street Fort Collins CO 60624 815,000
39 Clark Street Cazenovia NV 13035 500,000
40 645 North Overland Avenue Burley ID 60318 320,000
41 600-620 Month Road Lincoln Park MI 45145 750,000
42 11501 W. 48th Avenue Wheat Ridge CO 80103 730,000
43 2901, 2911, 2821 & 2501 North Tampa Way Las Vegas NV 89128 7,000,000
44 1050 West Washington Blvd. Los Angeles CA 80315 3,340,000
45 8470 West 2700 South Magna UT 84014 2,450,000
46 11445 Garland Road Dallas TX 75218 2,610,000
47 1600 Rhode Island Avenue, NW Washington DC 20038 13,800,000
48 Old Marlboro Pike and Brown Station Road Upper Marlboro MD 20772 10,400,000
49 2208 Whitegate Drive Columbia MD 56203 5,650,000
50 2360 W. Elliot Road Chandler AZ 56224 1,600,000
51 Summary Page Multiple MO Multiple 11,000,000
52 301 Tiger Lane Columbia MO 65203
53 100 N. Stadium Boulevard Columbia MO 65203
54 2401 West Broadway Columbia MO 65203
55 15445 35th Ave. West Lynnwood WA 98307 7,600,000
56 99-115 Aiea Heights Road Aiea HI 96701 6,065,065
57 2701 North Rolling Road Baltimore MD 21244 6,304,857
58 3701 Twin Lakes Court Baltimore MD 21244 5,335,171
59 638 Cooper Landing Road Cherry Hill Township NJ 08002 7,907,885
60 560 Bilper Avenue Lindenwold NJ 08021 11,059,835
61 450 Country Drive Dover DE 18801 7,356,340
62 A1 Bentley Road Eastampton NJ 08060 6,977,812
63 2 Goose Creek Drive Bloomington IL 61701 3,880,000
64 100 Commerce Way Hackensack NJ 07601 1,800,000
65 2140 Lake Park Boulevard Richardson TX 76085 25,800,000
66 280 Monterey Road San Jose CA 83111 5,100,000
67 2056 US Highway 45 Bypass South Trenton TN 35382 1,072,000
68 445 SW 27th Avenue Ft. Lauderdale FL 33312 600,000
69 14811 Farm Creek Drive Woodbridge VA 22181 2,400,000
70 3 & 11 Caledon Court Greenville SC 29815 2,822,060
71 Summary Page Multiple NY Multiple 6,000,000
72 200 Dunn Road Lyons NY 14489
73 2803 McLane Drive Lysander NY 13027
74 2702, 2600, 2828 North 44th Street Phoenix AZ 85004 16,000,000
75 2061-2071 N. Washington Street/Route 531 Hanover MA 02039 4,150,000
76 19770 North Freeway Spring TX 77373 2,300,000
77 9501 E. Shea Boulevard Scotsdale AZ 85260 24,700,000
78 4834 East Gettysburg Avenue Fresno CA 83726 2,683,000
79 2558 Pearl Buck Road Bristol PA 19077 4,118,635
80 315 Park Avenue South New York NY 10010 87,200,000
81 5070 E. Ashlan Avenue Fresno CA 93727 2,300,000
82 15000 North Taluro Boulevard Phoenix AZ 85002 1,725,000
83 702-704 North Azusa Avenue West Covina CA 91791 3,600,000
84 105 Eagle Vista Parkway Atlanta GA 30338 17,681,500
85 100 Eagle Vista Parkway Atlanta GA 30336 11,225,000
86 1545 Spruce Terrace Tampa FL 33637 4,000,000
87 1800 East Palo Verde Street Yuma AZ 85365 1,850,000
88 951 SW 11th Street and 1020 SW Depot Avenue Gainesville FL 32801 1,250,000
89 3424 & 3416 Dale Road, and 2906 Venaman Avenue Modesto CA 95356 1,500,000
90 3685-3595 Central Avenue Fort Myers FL 33901 2,175,000
91 6400 North Armenta Avenue Tampa FL 33804 1,850,000
92 871 Crowfield Blvd Goose Creek SC 29202 3,160,000
93 330 Gough Street and 280 Fall Street San Francisco CA 94102 10,000,000
94 7400 West Judge Perez Drive Arabi LA 70002 5,560,000
95 2450 Savarn Avenue Valeria LA 70001 8,500,000
96 13855 Superior Road East Cleveland OH 44118 4,060,000
97 701 Gateway Boulevard South San Francisco CA 84050 34,000,000
98 3860 Flagard Boulevard Irving TX 76053 14,900,000
99 3848 Mission Inn Avenue Riverdale CA 92501 18,000,000
100 300 10th Street Clarion IA 80525 2,600,000
101 14158-14255 SW Brigadoon Court Beaverton OR 97005 3,300,000
102 3315 NE 112th Avenue Vancouver WA 96882 4,600,000
103 9600 SW Oak Street Tigard OR 97220 7,370,000
104 520 SW Sixth Avenue Portland OR 97204 8,900,000
105 318 SW Washington Street Portland OR 97204 5,780,000
106 1750 112th Avenue, NE Bellevue WA 95004 16,500,000
107 2811 Keswick Village Court Conyers GA 30012 16,900,000
108 2520 LaJuana Drive Biloxi MS 36531 9,520,000
109 6360 San Felipe Road Houston TX 77057 11,060,000
110 18500 Northchase Drive Houston TX 77080 9,163,050
111 2050 Grayson Drive Grapevine TX 76061 20,600,000
112 38-40 East Colorado Blvd. Pasadena CA 91105 1,120,000
113 857 Tenacity Drive Longmont CO 80504 882,605
114 8411 Cedarwood Avenue Lawrence KS 86046 1,600,000
115 303 Goody Road Bacliff TX 77518 650,000
116 28831 Cabot Road Mission Viejo CA 92603 765,000
117 28821 Cabot Road Mission Viejo CA 92659 745,000
118 326 Truesdale Drive Chula Vista CA 92138 4,060,000
119 188 Main Street Highland Falls NY 10928 1,225,000
120 14901 S. E. 272 Street Kent WA 98042 8,500,000
121 2816 East Hanna Avenue Tampa FL 33610 3,030,000
122 5721-45 Morris Street Philadelphia PA 19144 1,100,000
123 500-502 West Chelton Avenue Philadelphia PA 19144 856,000
124 523-529 West Chelton Avenue Philadelphia PA 19144 1,240,812
125 Various Various VARIOUS various 1,420,000
126 11006 Grissom Lane Dallas TX 75225
127 13777 Bee Street Farmers Branch TX 75234
128 1632 Newport Blvd. Costa Mesa CA 92627 881,000
129 7900 Florin Road Sacramento CA 93826 2,250,000
130 11901 W. McDonald Road Avondale AZ 95323 1,400,000
131 8771 W. Pico Boulevard Los Angeles CA 9?035 1,307,000
132 6760 Minnick Road, 6773 Rapids Road Lockport NY 14094 6,430,000
133 4013 Premier Avenue Memphis TN 35118 2,100,000
134 7156 Winton Way Winton CA 95088 1,850,000
135 7434 Louis Pasteur Drive San Antonio TX 78228 2,900,000
136 360 30th Avenue Santa Cruz CA 95062 2,300,000
137 1722 Mangrove Avenue Chico CA 95826 1,500,000
138 3600 Lendie Drive Wichita Falls TX 76306 1,550,000
139 1280, 1300, 1200 North Johnson Avenue El Cajon CA 92020 6,685,000
140 33301 -33309 1st Avenue South Federal Way WA 98003 3,600,000
141 800 California Street Mountain View CA 94040 5,000,000
142 24922 Mulranda Blvd. Lake Forest CA 92800 2,400,000
143 12285 McNulty Blvd. Philadelphia PA 98118 2,150,000
144 11640, 11880, 11904, 11954 LaCinega Blvd. Del Alta CA 90250 5,400,000
145 2000 Parson Street Costa Mesa CA 92627 3,500,000
146 6820 Lakeside Road West Palm Beach FL 33411 1,255,000
147 20250 Acacia Street Newport Beach CA 92640 3,000,000
148 7230 4th Street North St. Petersburg FL 33702 3,500,000
149 FM 741Towns Road Waco TX 78827 1,950,000
150 2333 North Broadway Santa Ana CA 92708 2,800,000
151 815 - 819 E. Colorado Street Glendale CA 91205 2,235,000
152 30158 Autumn Wood Drive Huntsville AL 35816 2,600,000
153 3085 Raid Road Grand Blanc NJ 48438 15,700,000
154 456 East Mission Road San Marcos CA 92078 1,500,000
155 1500 S. Christopher Columbus Boulevard Philadelphia PA 19147 2,843,500
156 1195 South Diamond Bar Boulevard Diamond Bar CA 91765 1,050,000
157 305-327 East Vernon Drive Normal IL 81761 7,400,000
158 3850-3960 East Patrick Lane Las Vegas NV 89120 1,800,000
159 Various Various Various Various 1,190,000
160 1104 Hershey Street Bloomington IL 61704
161 2 Wiledrob Bloomington IL 61704
162 601 Technology Drive Cecil Township PA 15317 40,900,000
163 2707-2709 Wildwood Circle & 2714-2718
Arlington Avenue Caldwell ID 83605 1,110,877
164 Various Various Various Various 2,925,000
165 8 Lafayette Place Hilton Head Island SC 25926
166 1 Park Lane Hilton Head Island SC 25926
167 28 Hunter Road Hilton Head Island SC 25926
168 849 High Street Palo Alto CA 94301 3,100,000
169 2487 Alum Rock Avenue San Jose CA 95118 4,800,000
170 3860 2nd Avenue Pocatello ID 63204 1,100,000
171 41716,41743 and 41789 Enterprise Circle Tamecula CA 92540 2,600,000
172 2019 NE 179th Street Ridgefield WA 88642 8,950,000
173 2315 Maricopa Street Torrance CA 80500 2,525,000
174 4701 West Pointe Boulevard Oklahoma City OK 73278 5,600,000
175 1180 and 1234 Palmetto Drive Gainesville GA 30500 8,000,000
176 222 North Muller Street Anaheim CA 92801 6,750,000
177 9587 Canoga Avenue Chatsworth CA 91311 3,520,000
178 100 West Jones Road Fostoria OH 44830 6,250,000
179 1403 Carson Road Birmingham AL 35215 2,425,000
180 1182 Redman Street Orlando FL 32639 11,000,000
181 21621 Sandia Avenue Apple Valley CA 92307 1,000,000
182 12400 Ford Road Farmers Branch TX 75234 4,275,000
183 34184 County Line Road Yucaipa CA 92399 1,500,000
184 14596 Olde Highway Bd. Flinn Springs CA 92021 1,350,000
185 46898 Jefferson Street Indlo CA 92301 3,820,000
186 11785 Beltsville Drive Beltsville MD 20705 16,000,000
187 580 Dewdrop Circle Forest Park OH 45240 12,500,000
188 11281 Willows Road Redmond WA 88062 10,500,000
189 3100 Soaring Gulls Drive Las Vegas NV 69128 2,315,000
190 945 W. Manor Drive Nogales AZ 85621 2,850,000
191 4261 Hilary Circle West Palm Beach FL 33408 2,760,000
192 8944 Balboa Avenue San Diego CA 92123 2,700,000
193 8350 S. Drive North Battle Creek MI 49014 1,650,000
194 843 Indian Creek Road Locust Grove GA 30248 4,000,000
195 7212 Kingston Pike Knoxville TN 37819 2,000,000
- ---------------------------------------------------------------------------------------------------------------------------------
Amortization Loan Term LTV Cut-off Lien Loan
No. Cut-off Balance Type (months) Year Built Value Position Purpose
- ---------------------------------------------------------------------------------------------------------------------------------
1 6,462,232 Balloon 120 1999 75.6% First Refinance
2 11,552,472 Balloon 120 1998 52.7% First Refinance
3 3,848,012 Balloon 120 1978 70.0% First Cash Out
4 6,173,055 Balloon 120 1970 73.8% First Purchase
5 6,496,406 Balloon 120 1997 88.0% First Cash Out
6 1,104,762 Balloon 120 1973 77.5% First Refinance
7 2,813,890 Balloon 120 1985 72.2% First Cash Out
8 2,120,255 Balloon 120 1978 73.2% First Refinance
9 1,191,968 Balloon 120 1976 72.5% First Refinance
10 2,495,404 Balloon 120 1999 63.4% First Cash Out
11 674,151 Balloon 120 1985 72.6% First Refinance
12 1,311,241 Balloon 120 1984 71.6% First Refinance
13 3,423,607 Balloon 120 1984 72.8% First Cash Out
14 2,258,256 Balloon 120 1986 72.8% First Refinance
15 855,952 Balloon 120 1982 72.8% First Cash Out
16 562,778 Balloon 120 1981 72.8% First Cash Out
17 1,194,690 Balloon 120 1985 72.8% First Cash Out
18 1,300,561 Balloon 120 1984 72.8% First Cash Out
19 2,009,716 Balloon 120 1987 72.8% First Refinance
20 1,052,706 Balloon 120 1978 76.4% First Purchase
21 1,529,788 Balloon 120 1984 72.6% First Refinance
22 1,502,633 Balloon 120 1988 72.8% First Refinance
23 1,854,021 Balloon 120 1983 72.8% First Cash Out
24 3,105,137 Balloon 120 1986 70.6% First Refinance
25 1,637,843 Balloon 120 1983 83.2% First Refinance
26 1,455,838 Balloon 120 1983 83.3% First Cash Out
27 1,002,617 Balloon 120 1983 68.1% First Refinance
28 3,602,267 Balloon 120 1985 60.1% First Refinance
29 1,840,554 Balloon 120 1955 62.4% First Cash Out
30 1,904,602 Balloon 144 1975 71.2% First Cash Out
31 724,481 Balloon 120 1992 58.6% First Refinance
32 419,811 Balloon 120 1988 50.0% First Refinance
33 1,067,777 Balloon 120 1980 73.0% First Cash Out
34 732,060 Balloon 120 1984 38.6% First Cash Out
35 584,062 Balloon 120 1956 68.7% First Refinance
36 831,019 Balloon 120 1979 73.1% First Refinance
37 691,112 Balloon 120 1981 81.6% First Refinance
38 597,238 Balloon 120 1970 56.9% First Purchase
39 458,518 Balloon 120 1963 61.1% First Refinance
40 313,897 Balloon 120 1996 63.5% First Purchase
41 735,422 Balloon 120 1958 73.6% First Purchase
42 719,020 Balloon 120 1996 54.3% First Cash Out
43 6,965,176 Balloon 120 1997 65.4% First Cash Out
44 3,299,672 Fully AM 120 1978 45.5% First Cash Out
45 2,429,391 Balloon 120 1998 84.6% First Cash Out
46 2,692,608 Balloon 120 1970 66.6% First Refinance
47 13,024,268 Balloon 119 1958 80.6% First Refinance
48 10,385,641 Balloon 120 1999 78.8% First Refinance
49 5,630,612 Balloon 120 1985 82.1% First Refinance
50 1,595,770 Balloon 120 1988 57.0% First Refinance
51 11,051,025 Balloon 120 Various 78.6% First Cash Out
52 0 120 1962 0.0%
53 0 120 1985 0.0%
54 0 120 1985 0.0%
55 7,586,617 Balloon 120 1988 79.8% First Refinance
56 6,977,522 Fully AM 88 1985 63.3% First Refinance
57 6,304,857 Hyper AM 120 1972 63.5% First Purchase
58 5,335,171 Hyper AM 120 1971 63.7% First Purchase
59 7,907,885 Hyper AM 120 1963 67.2% First Purchase
60 11,059,835 Hyper AM 120 1972 84.4% First Purchase
61 7,385,340 Hyper AM 120 1985 71.2% First Purchase
62 8,977,812 Hyper AM 120 1987 89.0% First Purchase
63 3,951,887 Balloon 120 1980 79.6% First Refinance
64 1,791,137 Balloon 120 1983 74.6% First Purchase
65 25,823,693 Balloon 120 1999 79.6% First Refinance
66 5,077,691 Balloon 120 1998 83.6% First Refinance
67 1,088,088 Balloon 120 1998 78.3% First Purchase
68 597,940 Balloon 120 1998 73.5% First Refinance
69 2,387,788 Balloon 120 1988 67.3% First Cash Out
70 2,913,188 Balloon 120 1987 72.8% First Refinance
71 6,870,012 Balloon 120 Various 71.8% First Refinance
72 0 Balloon 120 1938 0.0% First
73 0 Balloon 120 1958 0.0% First Purchase
74 17,945,951 Balloon 120 1972 74.8% First Refinance
75 4,180,415 Balloon 120 1998 68.8% First Cash Out
76 2,231,377 Balloon 120 1976 70.8% First Purchase
77 24,673,859 Balloon 120 1972 64.9% First Purchase
78 2,683,738 Balloon 120 1977 78.8% First Purchase
79 4,133,304 Balloon 120 1911 79.5% First Refinance
80 87,200,000 Balloon 120 1979 86.1% First Refinance
81 2,285,982 Balloon 120 2000 78.2% First Refinance
82 1,722,185 Balloon 120 1999 74.9% First Purchase
83 3,595,505 Balloon 120 1999 78.5% First Refinance
84 12,681,152 Balloon 120 1999 78.5% First Refinance
85 11,202,104 Balloon 120 1984 77.3% First Cash Out
86 3,878,855 Balloon 81 1990 79.6% First Purchase
87 1,834,892 Balloon 120 1984 50.2% First Cash Out
88 1,275,488 Balloon 120 1978 79.7% First Cash Out
89 1,469,445 Balloon 120 1974 45.5% First Cash Out
90 2,167,279 Balloon 120 1965 76.9% First Cash Out
91 1,843,483 Balloon 120 1991 79.1% First Purchase
92 3,150,512 Balloon 120 2000 79.0% First Refinance
93 8,879,713 Balloon 120 1999 70.1% First Refinance
94 6,538,242 Balloon 120 1982 78.1% First Refinance
95 8,491,526 Balloon 120 1963 78.3% First Refinance
96 4,071,982 Balloon 120 1998 78.8% First Purchase
97 33,852,059 Balloon 120 2000 57.5% First Refinance
98 14,854,242 Balloon 120 1978 71.8% First Refinance
99 17,812,607 Balloon 108 1997 62.9% First Purchase
100 2,577,382 Balloon 120 1952 79.3% First Purchase
101 3,295,628 Balloon 120 1991 71.6% First Purchase
102 4,593,859 Balloon 120 1985 75.6% First Purchase
103 7,360,076 Balloon 120 1925 80.4% First Purchase
104 8,891,149 Balloon 120 1910 80.6% First Purchase
105 5,772,331 Balloon 120 1939 87.9% First Purchase
106 16,483,787 Balloon 120 1996 78.7% First Purchase
107 18,900,000 Balloon 120 1995 79.9% First Purchase
108 9,520,000 Balloon 120 1970 80.0% First Refinance
109 11,080,000 Balloon 120 1979 80.0% First Refinance
110 9,163,050 Balloon 120 1997 70.5% First Refinance
111 20,800,000 Balloon 120 1993 80.0% First Refinance
112 1,082,733 Balloon 120 2000 37.3% First Refinance
113 658,990 Balloon 120 1984 71.4% First Refinance
114 1,788,888 Balloon 120 1975 79.4% First Refinance
115 542,802 Balloon 120 1939 78.7% First Refinance
116 749,007 Balloon 120 1939 85.1% First Refinance
117 739,274 Balloon 120 1999 62.1% First Refinance
118 3,938,275 Balloon 120 1999 66.5% First Refinance
119 1,216,585 Balloon 120 1999 70.5% First Purchase
120 6,781,942 Balloon 120 1985 71.2% First Refinance
121 3,046,659 Balloon 120 1958 63.8% First Refinance
122 1,034,247 Balloon 120 1930 78.1% First Refinance
123 843,983 Balloon 120 1930 78.9% First Refinance
124 1,224,812 Balloon 120 1920 78.0% First Refinance
125 1,408,080 various 74.3% Refinance
126 1971
127 Balloon 120 1982 First
128 973,073 Balloon 120 1970 64.9% First Refinance
129 2,225,659 Balloon 120 1988 69.5% First Purchase
130 1,385,782 Balloon 120 1978 72.4% First Purchase
131 1,300,973 Balloon 120 1937 54.0% First Refinance
132 3,096,757 Balloon 120 1999 76.5% First Refinance
133 2,075,348 Balloon 120 1964 69.2% First Refinance
134 1,640,209 Balloon 120 1985 70.6% First Refinance
135 2,648,768 Balloon 120 1985 53.2% First Refinance
136 2,387,654 Balloon 120 1932 70.4% First Purchase
137 1,492,603 Balloon 120 1958 58.3% First Purchase
138 1,830,488 Balloon 120 1971 71.2% First Purchase
139 6,627,050 Balloon 120 1993 72.8% First Refinance
140 3,579,573 Balloon 120 1980 67.5% First Purchase
141 4,838,778 Balloon 120 2000 62.5% First Const. Takeout
142 1,978,725 Fully Amortizing 120 1972 30.0% First Refinance
143 2,238,795 Balloon 120 1986 74.6% First Purchase
144 6,370,297 Balloon 120 2000 71.7% First Refinance
145 3,450,711 Balloon 120 1968 62.2% First Refinance
146 1,278,859 Balloon 120 1988 63.9% First Refinance
147 2,885,443 Balloon 120 1990 65.0% First Purchase
148 3,450,821 Balloon 120 1949 75.7% First Refinance
149 1,839,711 Balloon 84 1999 79.2% First Purchase
150 2,784,019 Balloon 120 1967 63.0% First Refinance
151 2,223,743 Balloon 120 1885 73.8% First Refinance
152 2,388,168 Balloon 120 1884 78.4% First Refinance
153 15,842,813 Balloon 120 1855 74.5% First Refinance
154 1,459,428 Balloon 120 1922 73.7% First Refinance
155 2,827,838 Balloon 119 1922 89.0% First Refinance
156 1,045,100 Balloon 120 1986 33.2% First Purchase
157 7,351,510 Balloon 120 2000 78.4% First Refinance
158 1,490,976 Balloon 120 1996 67.8% First Const. Takeout
159 1,184,449 Balloon 120 Various 76.8% First Refinance
160 1988 First
161 1978 First
162 10,817,504 Balloon 120 2000 70.0% First Const. Takeout
163 1,108,488 Balloon 120 1995 7.4% First Refinance
164 2,913,677 Balloon 120 Various 73.3% First Purchase
165 1997
166 1985
167 1998
168 3,007,409 Balloon 120 1924 55.4% First Refinance
169 4,688,358 Balloon 120 2000 71.5% First Const. Takeout
170 1,089,144 Balloon 180 1984 88.1% First Refinance
171 2,791,285 Balloon 120 1990 80.7% First Refinance
172 8,824,885 Balloon 120 1998 76.8% First Const. Takeout
173 2,909,079 Balloon 120 1976 74.8% First Refinance
174 5,579,602 Balloon 120 2000 88.5% First Purchase
175 7,870,079 Balloon 120 1991 74.5% First Purchase
176 5,729,682 Balloon 120 1971 73.5% First Refinance
177 3,609,426 Balloon 120 1977 70.2% First Purchase
178 8,172,130 Balloon 120 1884 74.3% First Purchase
179 2,417,206 Balloon 120 1974 75.2% First Refinance
180 10,959,222 Balloon 120 1974 78.8% First Refinance
181 998,522 Balloon 120 1989 52.3% First Refinance
182 4,264,098 Balloon 120 1998 74.8% First Const. Takeout
183 1,495,494 Balloon 120 1957 72.2% First Refinance
184 1,348,511 Balloon 120 1980 85.0% First Refinance
185 3,008,101 Balloon 120 1987 79.8% First Purchase
186 15,972,832 Balloon 120 1989 51.5% First Refinance
187 12,461,491 Balloon 120 1965 78.6% First Refinance
188 10,461,491 Balloon 120 1965 74.4% First Refinance
189 2,311,246 Balloon 120 1997 66.5% First Purchase
190 2,545,756 Balloon 120 1971 75.1% First Refinance
191 2,739,220 Balloon 120 1856 78.4% First Refinance
192 2,686,211 Balloon 120 1957 45.5% First Refinance
193 1,635,848 Balloon 120 2000 89.9% First Purchase
194 3,882,202 Balloon 120 1970 67.7% First Purchase
195 1,994,488 Balloon 120 1957 72.5% First Purchase
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY BE
DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE POLICY.
DEFINED TERMS APPEAR IN BOLDFACE TYPE.
In consideration of the payment of the premium, in reliance upon the statements
in the Declarations and Secured Creditor Impaired Property Application
incorporated by reference and made a part hereof, and pursuant to all of the
terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the POLICY
PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the INSURED
becomes legally obligated to pay as a result of CLAIMS first made against the
INSURED and reported to the Company, in writing, during the POLICY PERIOD, for
BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from POLLUTION
CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
Copyright, American International Group, Inc., 2000
1
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend any
CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such CLAIM, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in item 4 of the Declarations.
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to
defend the INSURED at the Company's expense, the attorney fees and all other
litigation expenses the Company must pay to that counsel are limited to the
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 competency,
including experience in defending CLAIMS or suits similar to the one pending
against the INSURED and to require such counsel to have errors and omissions
insurance coverage. As respects to such counsel, the INSURED agrees that counsel
will timely respond to the Company's request for information regarding the
CLAIM.
Furthermore, the INSURED may at any time, by its signed consent, freely
and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy that
the INSURED provide the Company with notice of DEFAULT and POLLUTION CONDITIONS,
or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
and
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
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2
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers filed
with a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to
use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the limits
of coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMS, The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the
Copyright, American International Group, Inc., 2000
3
course of investigation or defense, the Company may require written statements
or the INSURED'S attendance at meetings with the Company. The INSURED must
reasonably assist the Company in effecting settlement, securing and providing
evidence and obtaining the attendance of witnesses, all without charge to the
Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative lines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED under
any contract or agreement, unless the liability of the INSURED would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any workers
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its parent,
subsidiary or affiliate arising out of and in the course of employment by the
INSURED or its parent, subsidiary or affiliate. This exclusion applies (1)
whether the INSURED may be liable as an employer or in any other capacity; and
(2) to any obligation to share damages with or repay third parties that must pay
damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to the
INSURED'S intentional, knowing, 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.
F. arising from POLLUTION CONDITIONS resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the POLLUTION
CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY, and not otherwise specifically excluded by
endorsement to this Policy, if as of such date the INSURED knew that such
POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed to
disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an INSURED
under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or affiliate, unless such costs, charges or
Copyright, American International Group, Inc., 2000
4
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIMITS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy
shall not exceed the "Total all Losses" stated in Item 23 of the Declarations.
The purchase of an EXTENDED REPORTING PERIOD pursuant to Section VII of this
Policy shall not serve to reinstate or increase the "Total all Losses".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in Paragraph
A above, the most the Company will pay in excess of the deductible amount shown
in Item 4 of the Declarations for each LOSS under Coverage A and B, and for all
CLEAN-UP COSTS arising from the same, continuous or related POLLUTION CONDITIONS
under Coverage C, is the "Each Loss" limit of liability shown in Item 3 of the
Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a Claim for BODILY INJURY,
PROPERTY DAMAGE or CLEAN-UP COSTS is first made against the INSURED and reported
to the Company during this POLICY PERIOD, all CLAIMS for BODILY INJURY, PROPERTY
DAMAGE or CLEAN-UP COSTS arising from the same, continuous or related POLLUTION
CONDITIONS, which are made against the INSURED and reported under a subsequent
Secured Creditor Impaired Property Policy issued by the Company or its
affiliate, shall be deemed to have been first made and reported under this
Policy and shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1, above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such Claim
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related POLLUTION
CONDITIONS shall be subject to one "Each Loss" limit of liability. In the event
coverage is provided under more than one of Coverages A, B and C, only one "Each
Loss" limit stated in Item 3 of the Declarations shall apply.
Copyright, American International Group, Inc., 2000
5
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A and
B, above, this Policy is to pay all LOSS in excess of the "Each Loss" Deductible
amount stated in Item 4 of the Declarations. The Deductible amount includes
investigation and defense costs, charges and expenses, and applies to all LOSS
arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any
payment of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN, including
without limitation, any guarantor therefor, the holder of any ownership interest
in an INSURED PROPERTY and any other person, entity or organization controlled
by or under common control of the obligor.
C. CLAIM means a written demand received by the insured seeking a remedy
and alleging liability or responsibility on the part of the INSURED for LOSS
under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state thereof,
or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or other security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL REAL
ESTATE LOAN or the BORROWER'S failure to comply with items designated as the
Copyright, American International Group, Inc., 2000
6
causes or events of default as provided by the terms of the COMMERCIAL REAL
ESTATE LOAN. The DEFAULT shall be deemed to occur on the day after such due date
under the COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured
within the applicable grace period as provided by the terms of the COMMERCIAL
REAL ESTATE LOAN. For purposes of this Policy, the mere presence of a POLLUTION
CONDITION shall not be deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including
but not limited to statutes, regulations, rules, ordinances, guidance documents,
and governmental or administrative orders and directives) which are applicable
to POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. FORECLOSURE means taking title to an interest in the INSURED PROPERTY,
Leasehold or FIXED ASSETS through the enforcement of a lien, mortgage, deed of
trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN, whether
through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any director,
officer, partner or employee thereof while acting within the scope of his or her
duties as such, and any such additional INSURED added by endorsement to this
Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS or
LEASEHOLD, scheduled in Item 5 of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the date
of Default, including principal and accrued interest from the
date of DEFAULT until the date that the OUTSTANDING BALANCE is
paid, plus interest on any advances of scheduled monthly payments
made by the Insured from the date of DEFAULT, plus advances and
interest on advances for PROPERTY PROTECTION actually paid by the
INSURED pursuant to the COMMERCIAL REAL ESTATE LOAN or, if
applicable, a POOLING AND SERVICING AGREEMENT. Such advances and
interest on advances made for PROPERTY PROTECTION are limited to
ten (10) percent of the OUTSTANDING BALANCE on the date of
DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements of
compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP COSTS; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment of
CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS.
Copyright, American International Group, Inc., 2000
7
N. NAMED INSURED means the party, person or entity named in Item 1 of the
Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall nor include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the Declarations
or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED PROPERTY at
the NAMED INSURED'S written request, but solely with respect to
that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal, release
or escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, in concentrations or
amounts exceeding maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority granted by
ENVIRONMENTAL LAWS, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
2. with respect to Coverage B, the discharge, dispersal, release, or
escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
Copyright, American International Group, Inc., 2000
8
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of parties
other than the INSURED, including the resulting loss of use or
diminution in value thereof;
2. Loss of use, but not diminution in value, of tangible property of
parties other than the INSURED, which has not been physically
injured or destroyed;
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect the
INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD- COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to replace
Coverage B which applies to a Claim otherwise covered under Coverage B, the
NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination of coverage in which to provide written notice to
the Company of CLAIMS first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the Claim arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3, below,
except in the event of nonpayment of premium.
Copyright, American International Group, Inc., 2000
9
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the provisions
contained in Paragraph 2 below, will be deemed to have been made
on the last day of the POLICY PERIOD, provided that the CLAIM
arises from POLLUTION CONDITIONS that commenced before the end of
the POLICY PERIOD and is otherwise covered by this Policy.
2. The Company shall issue an endorsement providing an Optional
Extended Reporting Period of up to thirty-six (36) months from
termination of coverage under this Policy for any INSURED
PROPERTY provided that the NAMED INSURED:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended Reporting
Period may not be canceled, provided that all other terms
and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the NAMED
INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations of
this Policy of a location which was an INSURED PROPERTY, at
the INSURED'S written request, but solely with respect to
that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the NAMED
INSURED for not more than 200% of the premium the Company has
charged for the INSURED PROPERTY for which the Extended Reporting
Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to the Servicer or Trustee,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
Copyright, American International Group, Inc., 2000
10
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company shall be
subrogated to all the INSURED'S rights of recovery therefor against any person
or organization, with the exception of the BORROWER; provided that if the
Company indemnifies the INSURED for the OUTSTANDING BALANCE under Coverage A,
the Company reserves its right of FORECLOSURE against the BORROWER.
2. The INSURED shall execute and deliver instruments and papers and do
whatever else is reasonably necessary to secure such rights including without
limitation, assignment of the INSURED'S rights against any person or
organization, with the exception of the BORROWER, who caused POLLUTION
CONDITIONS on account of which the Company made any payment under this Policy.
3. Any recovery as a result of subrogation proceedings shall accrue
first to the INSURED to the extent of any LOSS in excess of the limit of
coverage, then to the Company to the extent of its payment under the policy, and
then to the INSURED to the extent of its Deductible Expenses incurred in such
subrogation proceedings shall be apportioned among the interested parties in the
recovery in the proportion that each interested party's share in the recovery
bears to the total recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery shall serve to
reinstate the "Total all Losses" limit of liability stated in Item 3 of the
Declarations, but only to the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's rights of
Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by surrender
thereof to the Company or any of its authorized agents or by mailing to the
Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of
premium by mailing to the NAMED INSURED at the address shown in the Policy,
written notice stating when not less than ten (10) days thereafter cancellation
shall be effective. Proof of mailing of notice described in this Condition E
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
Copyright, American International Group, Inc., 2000
11
to mailing. If the NAMED INSURED cancels, earned premium shall be computed in
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the INSURED has
willfully concealed or misrepresented any tact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not affected
unless any other insurance applicable to LOSS covered by
this Policy is also primary. Then, we will share with all
other insurance by the method described in paragraphs (b)
and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this approach
each insurer contributes equal amounts until it has paid its
applicable limit of insurance or none of the loss remains,
whichever comes first.
(c) If any other insurance does not permit contribution by equal
shares, we will contribute by limits. Under this method,
each insurer's share is based on the ratio of its applicable
limit of insurance to the total applicable limits of
insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED and to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
Copyright, American International Group, Inc., 2000
12
INSURED PROPERTY for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The insured agrees to provide appropriate personnel to
assist the Company's representatives during any Inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED INSURED
agrees that the statements in the Declarations and Secured Creditor Impaired
Property Application are its agreements and representations, that this Policy is
issued in reliance upon the truth of such representations and that this Policy
embodies all agreements existing between any insured and the Company or any of
its agents relating to this Insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right under
this Policy:
1. to join the Company as a party or otherwise bring the Company
into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms have
been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimant's legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the INSURED'S
estate shall not relieve the Company of any of its obligations hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules. If permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the arbitration
shall be conducted in New York, New York. The arbitrators shall give due
consideration to the general principles of New York law in the construction and
interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
Copyright, American International Group, Inc., 2000
13
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its reasoning,
shall be provided simultaneously to both parties and shall be binding on them.
The arbitrators' award shall not include attorney fees or other costs. Judgment
on the award may be entered in any court of competent jurisdiction, each party
shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M above, it is agreed that 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. Nothing in this
condition constitutes or should be understood to constitute a waiver of the
Company's rights to commence an action in any court of competent jurisdiction in
the United States, to remove an action to a United Stated District Court, or to
seek a transfer of a case to another court as permitted by the laws of the
United States or of any state in the United States. It is further agreed that
service of process in such suit may be made upon General Counsel, Legal
Department, American International Specialty Lines Insurance Company, 70 Pine
Street, New York, New York 10270, or his or her representative, and that in any
Suit instituted against the Company upon this contract, the Company will abide
by the final decision of such court or of any appellate court in the event of
any appeal.
Further, pursuant to any statute of any state, territory, or district of
the United States which makes provision therefore, the Company hereby designates
the Superintendent, Commissioner, Director of Insurance, or other officer
specified for that purpose in the statute, or his or her successor or successors
in office 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 any beneficiary hereunder arising out of this contract of insurance,
and hereby designates the above named General Counsel as the person to whom the
said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS - In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the
INSURED against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
Copyright, American International Group, Inc., 2000
14
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
Copyright, American International Group, Inc., 2000
15
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by its
president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
------------------------------ --------------------------------
SECRETARY PRESIDENT
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE COMPANY
(A CAPITAL STOCK INSURANCE COMPANY, HEREIN CALLED THE COMPANY)
175 WATER STREET, TWELFTH FLOOR
NEW YORK, NEW YORK 10038
[AISL LOGO]
A Member
Company
of American
International
Group, Inc.
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
AND 100 North Tryon Street, 11th Floor
POST OFFICE Charlotte, NC 28255
NOTICE: COVERAGE B PROVIDES CLAIMS-MADE-AND-REPORTED COVERAGE. PLEASE READ
CAREFULLY.
SECURED CREDITOR IMPAIRED PROPERTY POLICY
(INDIVIDUAL SITE)
DECLARATIONS
POLICY NUMBER: 341 76 86
ITEM 1: NAMED INSURED Wells Fargo Bank of Minnesota, NA. as trustee for the
holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2001-1
ADDRESS 100 North Tryon Street, 11th Floor
Charlotte, NC 28255
ITEM 2: POLICY PERIOD: FROM 5/29/01 TO equal to each specific property's
remaining loan Term (as listed on
Schedule A) plus 7 years
12:01 A.M. Standard time at the address of the
Named Insured shown above.
ITEM 3: LIMITS OF LIABILITY Each Loss $42,500,000
Total all Losses $42,500,000
ITEM 4: DEDUCTIBLE: Each Loss $0
ITEM 5: INSURED PROPERTY: 701 Gateway Office Building
701 Gateway Boulevard
South San Francisco, CA
ITEM 6: POLICY PREMIUM $ 50,000
BROKER: Environmental Insurance Brokerage Services
226 Lowell Street, B-4A
Wilmington, MA 01887
ENDORSEMENTS: See Forms Schedule
/s/ Armand Pepin
-----------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by law)
Copyright, American International Group, Inc., 2000
FORMS SCHEDULE
--------------
NAMED INSURED: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
POLICY NO: 341 76 86
EFFECTIVE 12:01AM: 5/29/01
Form Name Form Number
- --------------------------------------------------------------------------------
AISLIC Secured Creditor Impaired Property Policy 75795 (2/00)
Declarations Page 75793 (2/00)
Minimum Earned Premium
Secured Creditor Impaired Property Endorsement
Additional Named Insured Endorsement
Schedule A Endorsement
ENDORSEMENT NO. 1
THIS ENDORSEMENT, EFFECTIVE 12:01 AM.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 86
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
MINIMUM EARNED PREMIUM ENDORSEMENT
----------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the following minimum earned premium will apply:
Binding Coverage Minimum Premium Earned 100%
The premium will be 100% earned at inception of the Policy.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
--------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by
law)
ENDORSEMENT NO. 2
THIS ENDORSEMENT, EFFECTIVE 12:01 AM: 5/29/01
FORMS A PART OF POLICY NO.: 341 76 86
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
SECURED CREDITOR IMPAIRED PROPERTY ENDORSEMENT
----------------------------------------------
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the Policy is amended as follows:
1. Section II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first
learns of the DEFAULT and POLLUTION CONDITIONS with respect to Coverage A,
a CLAIM with respect to Coverage B. or POLLUTION CONDITIONS with respect to
Coverage C to:
Manager, Pollution Insurance Products Unit
AIG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
And
Division Attorney - Pollution Legal Liability
Commerce and Industry Insurance Company
175 Water Street
New York, New York 10038
or other address(es) as substituted by the Company in writing.
2. Section III. DUTIES OF THE INSURED IN THE EVENT OF LOSS, paragraph A is
deleted in its entirety and replaced with the following:
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS with respect to Coverage A, a CLAIM with respect to
Coverage B, or POLLUTION CONDITIONS with respect to Coverage C:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers
filed with a court of law, administrative agency or
investigative body;
3. all technical reports, laboratory data, field notes or any
other documents generated by persons hired by the INSURED to
investigate or remediate POLLUTION CONDITIONS;
4. all expert reports, investigations and data collected by
experts retained by the INSURED, whether or not the INSURED
intends to use the material for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
3. Section IV. EXCLUSIONS, paragraph C is deleted in its entirety.
4. Section VI. DEFINITIONS, paragraph D. CLEAN-UP COSTS, F. DEFAULT, and R.
POLLUTION CONDITIONS are deleted in their entirety and replaced with the
following, respectively:
D. CLEAN-UP COSTS means expenses, including reasonable and necessary
legal expenses incurred with the Company's written consent which consent
shall not be unreasonably withheld or delayed, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or by court
order or directive, the government or any political
subdivision of the United States of America or any state
thereof, or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state therefor Canada or any province thereof, or by
third-parties.
F. DEFAULT means the failure of a BORROWER to make any part of a
scheduled, periodic or final payment by the due date under the COMMERCIAL
REAL ESTATE LOAN or the BORROWER'S failure to comply with items designated
as the causes or events lot default as provided by the terms of the
COMMERCIAL REAL ESTATE LOAN. The DEFAULT shall be deemed to occur on the
day after such due date under the COMMERCIAL REAL ESTATE LOAN provided that
the DEFAULT was not cured within the applicable grace period as provided by
the terms of the COMMERCIAL REAL ESTATE LOAN.
R. POLLUTION CONDITIONS means:
(1) with respect to Coverages A and C, the discharge,
dispersal, release or escape of any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, hazardous substances, and waste materials into or
upon land, or any structure on land, the atmosphere or any watercourse or
body of water, including groundwater, resulting in concentrations or
amounts exceeding maximum levels allowed by applicable ENVIRONMENTAL LAWS,
or by governmental or court order or directive, acting under the authority
granted by ENVIRONMENTAL LAWS, provided such conditions are not naturally
present in the environment in the concentration or amounts discovered.
POLLUTION CONDITIONS also includes the discharge, dispersal, release or
escape of radon into any structure or on land.
(2) with respect to Coverage B, the discharge, dispersal,
release, or escape of any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, and waste materials into or upon land, or any structure on land,
the atmosphere or any watercourse or body of water, including groundwater,
provided such conditions are not naturally present in the environment in
the concentration or amounts discovered POLLUTION CONDITIONS also includes
the discharge, dispersal, release or escape of radon into any structure or
on land.
5. Section VIII. CONDITIONS, paragraph A. ASSIGNMENT is deleted in its
entirety and replaced with the following:
A. ASSIGNMENT - This Policy may not be assigned without the prior
written consent of the Company which consent shall not be unreasonably
withheld. Assignment of interest under this Policy shall not bind the
Company until its consent is endorsed thereon. However, this Policy may be
assigned by the NAMED INSURED, without the Company's prior written consent
to a SERVICER or TRUSTEE, or another entity which has, directly or
indirectly, invested in or loaned money in connection with an INSURED
PROPERTY. The NAMED INSURED must provide the Company written notice of such
assignment within forty-five (45) days of the effective date of the
assignment.
All other terms, conditions and exclusions shall remain the same.
/s/ Armand Pepin
--------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by
law)
ENDORSEMENT NO. 3
THIS ENDORSEMENT, EFFECTIVE 12:01 A.M.: 5/29/01
FORMS A PART OF POLICY NUMBER: 341 76 86
ISSUED TO: Wells Fargo Bank of Minnesota, N.A. as trustee for the holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-1
BY: American International Specialty Lines Insurance Company
ADDITIONAL INSURED(S) ENDORSEMENT
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
It is hereby agreed that the following entity(ies) is (are) included as an
additional INSURED(S). Coverage for such additional INSURED(S) applies under
this Endorsement:
1. Solely to the additional INSURED'S liability arising out of the NAMED
INSURED'S ownership, security interest in, operation, maintenance or use of
the INSURED PROPERTY(IES) and
2. Only if the additional INSURED is named in a suit as a co-defendant with
the NAMED INSURED, alleging the additional insured is liable on the basis
described in paragraph 1 above.
ADDITIONAL INSURED(S)
---------------------
GMAC Commercial Mortgage Corporation, as Master Servicer for
Wells Fargo Bank of Minnesota, N.A. as Trustee for the
registered certificate holders of Commercial Mortgage Pass-Through
Certificates, Series 2001-1
Lennar Partners, Inc. as Special Servicer for GMAC Commercial Mortgage
Corporation, as Master Servicer for Wells Fargo Bank of Minnesota, N.A.,
as Trustee for the registered certificate holders of Commercial Mortgage
Pass-Through Certificates, Series 2001-1
All other terms and conditions remain unchanged.
/s/ Armand Pepin
--------------------------------------
AUTHORIZED REPRESENTATIVE
or countersignature (where required by
law)
SCHEDULE A
- ---------------------------------------------------------------------------------------------------------------
No. Loan Number Property Name Property Type
- ---------------------------------------------------------------------------------------------------------------
1 51020 Premier Plaza Shopping Center Retail
2 51084 Ballantyne Commons East Retail
3 51225 2815 Camino Del Rio Building Office
4 51674 Shady Grove Shopping Center Retail
5 51872 Comfort Suites-BWI Airport Hotel
6 51833 Courtright Lane Apartments Multifamily
7 51835 Park Plaza Shopping Center Retail
8 51837 Capital Mini-Stroage #2 Mini Storage
9 61838 South Charleston Mini-Storage Mini Storage
10 51941 Real Property Services Office Building Office
11 51942 Clearlake Pines Apartments II Multifamily
12 51943 Elmwood Apartments II Multifamily
13 51944 Woodland Apartments I & II Multifamily
14 51945 Sky Pines Apartments Multifamily
15 51948 Deerwood Apartments Multifamily
16 51947 Brandywine Apartments East Multifamily
17 51948 Pine Knoll Apartments of Clayton County Multifamily
18 51849 Sunnyside Apartments Multifamily
19 51950 King's Colony Apartments Multifamily
20 51951 Laurel Court Apartments Multifamily
21 51952 Woodlands Apartments of Columbia II Multifamily
22 51953 Harvest Grove Apartments Multifamily
23 51954 Cedarwood Apartments I & II Multifamily
24 51955 Cherry Glen Apartments I & II Multifamily
25 51956 Sherbrook Apartments Multifamily
26 51957 Elmtree Park Apartments Multifamily
27 51958 Fashion Bug Wonder Bread Retail
28 51973 Desertbrook Apartments Multifamily
29 51974 Seattle Mini Storage Mini Storage
30 51977 Aida Jean Apartments Multifamily
31 51978 Renaissance Plaza Office
32 51979 Broadway Shoppette Retail
33 51980 Southtown Blvd. Commercial Building Industrial
34 51981 The Fur Plaza Retail
35 51982 Lantam Arms Apartments Multifamily
36 51983 Image Wax Warehouse Industrial
37 51984 Freeway VIII Central Retail
38 51985 Mountain View Mobile Home Park Mobile Home
39 51986 Windmill Courts Apartments Multifamily
40 51987 Prime Commercial Parners-Burley Honk's 99 Cent Retail Retail
41 51989 Parkside Manor Apartments Multifamily
42 51990 Lakamont Office Bldg. Office
43 52141 Tech Center Plaza Office
44 52336 Downtown Mini Storage Mini Storage
45 52387 Magna Post Office Office
46 52536 Manyard's Property Retail
47 52533 Marriott Courtyard - Embassy Row Hotel
48 52587 Marlboro Village Center Hotel
49 53079 Colony Apartments Multifamily
50 53127 Elliot & Price Mini Storage Mini Storage
51 53169 Columbia Apartment Portfolio Multifamily
52 53169 Columbia Apartment Portfolio - Tiger Village Apts Multifamily
53 53169 Columbia Apartment Portfolio - Holiday House Apts. Multifamily
54 53169 Columbia Apartment Portfolio - Gatehouse Apts. Multifamily
55 53247 Fountain Court Apartments Multifamily
56 53343 Aiea Shopping Center Retail
57 53408 Cedar Gardens Apartments/Kushner Multifamily
58 53407 Cedar Towers Apartments/Kushner Multifamily
59 53410 Colonial Apartments/Kushner Multifamily
60 53411 Colonial Pines Apartments/Kushner Multifamily
61 53412 Country Village Apartments Kushner Multifamily
62 53414 Eastampton Gardens Apartments Kushner Multifamily
63 53509 Goose Creek Apartments Multifamily
64 53529 Hackensack Industrial Industrial
65 53531 One Lake Park Office Building Office
66 53552 A-1 Self Storage Mini Storage
67 53570 CVS - Trenton, TN Retail
68 63630 Westwood Heights Apartments Multifamily
69 53878 Nation's Capital Archives Industrial
70 53749 Caledon Woods Professional Park Bldgs 3 & 11 Office
71 53806 Ball Plastics/Motts Warehouse - Summary Industrial
72 53808 Motts Warehouse Industrial
73 63808 Ball Plastics Warehouse Industrial
74 53879 Talley Plaza Office
75 53894 Merchants Row Mall Retail
76 53985 Spring Park Shopping Center Retail
77 53967 PCS Holdings Corp. Office Building Office
78 54028 Westwood Apartments Multifamily
79 54055 Keystone Industrial Park Industrial
80 54058 315 Park Avenue Office
81 54109 Sandalwood Apartments Multifamily
82 64134 Holland Boone Shopping Center Retail
83 64141 Sav-On Drug Store No. 5687 Retail
84 54221 Eagle One Distribution Warehouse Industrial
85 34221 Eagle Two Distribution Warehouse Industrial
86 54228 Westport Commons Apartments Multifamily
87 54297 Sam's Club - Yuma AZ Retail
88 54321 Parkside I & II Multifamily
89 54322 Vintage Plaza Retail
90 64948 Vogue Apartments Multifamily
91 54449 French Quarter Multifamily
92 54473 Crowfield Plaza Shopping Center Retail
93 54503 Gough & Fall Apartments Multifamily
94 54538 Arahl Shopping Center - Winn Dixie # 1434 Retail
95 54608 Severn Place Office Building Office
96 64625 Lake Park Tower Apartments Multifamily
97 54658 701 Gateway Office Building Office
98 64864 Freeport Office Center IV Office
99 64874 Historic Mission, Inc. Hotel
100 64700 EDS Customer Relationship Management Inc. Building Industrial
101 34739 Northwest-Beaverton Center Office
102 51740 Northwest-Vancouver Business Park Industrial
103 54742 Northwest-Plaza West Office
104 54745 Northwest-Cascade Building Office
105 54748 Northwest-Spalding Building Office
106 54748 Northwest -Hidden Valley Office
107 54781 Keswick Village Apartments Multifamily
108 54812 RCA- Lexington Apartments Multifamily
109 64813 RCA - Regency Arms Multifamily
110 64814 RCA - Royal Phoenician Apartments Multifamily
111 51816 RCA-Royal St. Moritz Apartments Multifamily
112 600012 38-40 Colorado Blvd. Retail
113 600055 Prospect Office Building Office
114 245990123 Cedarwood Apartments Multifamily
115 400003143 Keystone, MHP Mobile Home Park
116 416000149 Saddleback Technology Park #2 Industrial
117 415990127 Saddleback Technology Park #1 Industrial
118 415990105 Vanguard Self Storage Self-Storage
119 276000145 Rite Aid Highland Falls Retail
120 302000148 Lake Meridian Apartments Multifamily
121 430990121 Electric Machinery Enterprises Industrial
122 410690031 Morris Manor Apts. Multifamily
123 410990003 Chadlan Arms Apartments Multifamily
124 410890032 President & Bel Air Apts. Multifamily
125 430890126 Grissom-Bee Street Warehouses (Roll-up) Industrial
126 430590128A Grissom Lane Office Warehouse Building Industrial
127 430990128B Bee Street Office Warehouses Building Industrial
128 295000135 US Storage Centers, Newport Self-Storage
129 330000??? Southpoint Shopping Center Retail
130 400000154 Country Hills Mobile Estates Mobile Home Park
131 302000148 Pico Boulevard Retail
132 400000162 Surburban Acres-Realty Estates Mobile Home Park
133 400000141 Premier Distribution Industrial
134 302000163 The Sierras Multifamily
135 280990122 Pyramid Plaza Office
136 400000183 Snug Harbor MHP Mobile Home Park
137 308000170 Mangrove Square Retail
138 400990118 Sunrise MHP Mobile Home Park
139 415000152 Center Pointe Business Park Industrial
140 800000173 Westside Center Office
141 304000155 800 California Street Office
142 300980018 Kimberly Gardens, MHP Mobile Home Park
143 275000160 McNulty Road Industrial
144 400000169 Airport Commerce Center Industrial
145 415000195 Westbay Apartments Multifamily
146 615000171 API Facility Office
147 24000220 Acacia Court Office
148 400000181 Hollywood MHP Mobile Home Park
149 400000188 Country Homes Village MHP Mobile Home Park
150 240000167 North Broadway Office Office
151 415000183 Glendale Office Office
152 400000201 Autumn Wood Apartments Multifamily
153 8200001B0 Weistech Industrial Park Industrial
154 275850124 Morally Wholesale Design Center Industrial
155 275950124 Dickinson Square Office
156 415000207 Diamond Bar Plaza Retail
157 820000198 Vernon Stables Multifamily
158 309090203 Patrick Professional Plaza Office
159 820000210 Hershey & Wiledrob Apts. Roll Up Multifamily
160 820000210A Hershey Apartments Multifamily
161 8200002108 Wiledrob Apartments Multifamily
162 312000210 Stealth II Office
163 410000198 Baycrest Apartments Multifamily
164 100000215 Prudential, Stoneworks & Carewell Buildings Various
165 100000215A Prudential Office Building Office
166 1000002158 Carewell Office Building Office
167 1000002150 Stoneworks Showroom Industrial
168 310000302 High Street Office Office
169 302000168 Alum Rock Self Storage Self-Storage
170 440000208 Intermountain Self Storage Self-Storage
171 311000205 Enterprise Court Office
172 600000218 Whipple Creek Apartments Multifamily
173 302000206 Torrance Self Storage Self-Storage
174 240000204 ABI Distribution Center Industrial
175 100000225 Industrial Park South Industrial
176 415000222 Bassom Square Apartments Multifamily
177 314000202 Canoga Avenue Industrial Industrial
178 300000248 Quality Distribution Center Industrial
179 400000228 Carson Crest Apartments Multifamily
180 400000262 Lake Jasmine Apartments Multifamily
181 15000221 Mountain View ??? MHC Mobile Home Park
182 31100021P Buchanan Visual Communications Industrial
183 400000231 Holiday Rancho MHP Mobile Home Park
184 400000203 Flinn Springs MHP Mobile Home Park
185 415000242 La Qulpta Springs Apartments Multifamily
186 250009223 Calverton Office Building #5 Office
187 100000268 Forest Park Apartments Multifamily
188 800000214 Willows Corporate Center Office
189 400000275 Soaring Gulls Office Building Office
190 400000287 Mariposa Manor MHO Mobile Home Park
191 400000229 Marlboro Courts MHP Mobile Home Park
192 430000217 Balboa Boulevard Building Industrial
193 308000248 Quality Stones Inc. -- BattleCreek, MI Retail
194 400000255 Indan Creek MHO Mobile Home Park
195 318000261 Kingston Pike Retail
- ------------------------------------------------------------------------------------------------------------------------------------
Original
No. Property Address Property City State Zip Code Prin. Balance
- ------------------------------------------------------------------------------------------------------------------------------------
1 1301-1321 W. Government Rd Brandon MS 39042 5,544,000
2 13007 John J. Delaney Dr. Charlotte NC 28277 14,750,000
3 2815 Camino Del Rio South San Diego CA 92108 3,850,000
4 2200 West Shady Grove Road Irving TX 75080 5,200,000
5 815 Elkridge Landing Road Linthicum MD 21090 6,580,000
6 2269 Courtright Road Columbia OH 43233 1,140,000
7 789 Hebron Road Heath OH 43056 2,800,000
8 410 56th Street Charleston WV 28004 2,173,000
9 4128-4200 Kanawha Turnpike South Charleston WV 25009 1,221,000
10 816 W. Brooks Avenue North Las Vegas NV 88030 2,582,000
11 2600 Clearlake Road #18A Cocoa FL 38222 800,000
12 5111 Elmhurst Road #3 West Palm Beach FL 33417 1,350,000
13 2909 Burroughs Drive #7 Orlando FL 32816 3,625,000
14 4990 North Lane #902 Orlando FL 32803 2,325,000
15 611 Mt. Homer Road Eusis FL 32728 681,250
16 416 19th Street, SE Winter Haven FL 33684 6,000,000
17 7393 Tara Road Jonesboro GA 30236 1,230,000
18 809 West 29th Street Tilton GA 31784 1,342,000
19 1425 King George Blvd. Savannah GA 31419 2,100,000
20 125 St. Paul Drive Fremont OH 43420 1,125,000
21 6054 Deerbrook Lane Columbus OH 43213 1,575,000
22 5239 Harvestwood Lane Gahanna OH 43230 1,850,000
23 1306 Cedarbrook Drive Goshen IN 46526 1,850,000
24 2752 Cherry Glen Way Indianapolis IN 46227 3,200,000
25 8026 McFarland Court Indianapolis IN 48227 1,888,250
26 11023 Elmtree Park Dr. Indianapolis IN 48229 1,500,000
27 2605 East Main Street Plainfield IN 46183 1,025,000
28 3703 West Kannawick Avenue Kennawick WA 99306 3,187,000
29 1100 Poplar Place South Seattle WA 98144 1,873,000
30 2860 & 2882 South 200 East Street South Salt Lake UT 84115 1,949,000
31 1644-1684 SW Willemette Falls West Linn CA 97068 750,000
32 5550-5555 S. Broadway Littleton CO 80121 430,000
33 1851 Southtown Blvd. Morraina (Dayton) OH 45409 1,087,500
34 4830-4846 Sunrise Highway Sayville NY 11782 750,000
35 648 Riverview Terrace Dayton OH 45407 600,000
36 1040 Wabash Avenue Chesterton IN 48304 600,000
37 20007 44th Avenue West Lynnwood WA 98038 700,000
38 3109 East Mulberry Street Fort Collins CO 60624 815,000
39 Clark Street Cazenovia NV 13035 500,000
40 645 North Overland Avenue Burley ID 60318 320,000
41 600-620 Month Road Lincoln Park MI 45145 750,000
42 11501 W. 48th Avenue Wheat Ridge CO 80103 730,000
43 2901, 2911, 2821 & 2501 North Tampa Way Las Vegas NV 89128 7,000,000
44 1050 West Washington Blvd. Los Angeles CA 80315 3,340,000
45 8470 West 2700 South Magna UT 84014 2,450,000
46 11445 Garland Road Dallas TX 75218 2,610,000
47 1600 Rhode Island Avenue, NW Washington DC 20038 13,800,000
48 Old Marlboro Pike and Brown Station Road Upper Marlboro MD 20772 10,400,000
49 2208 Whitegate Drive Columbia MD 56203 5,650,000
50 2360 W. Elliot Road Chandler AZ 56224 1,600,000
51 Summary Page Multiple MO Multiple 11,000,000
52 301 Tiger Lane Columbia MO 65203
53 100 N. Stadium Boulevard Columbia MO 65203
54 2401 West Broadway Columbia MO 65203
55 15445 35th Ave. West Lynnwood WA 98307 7,600,000
56 99-115 Aiea Heights Road Aiea HI 96701 6,065,065
57 2701 North Rolling Road Baltimore MD 21244 6,304,857
58 3701 Twin Lakes Court Baltimore MD 21244 5,335,171
59 638 Cooper Landing Road Cherry Hill Township NJ 08002 7,907,885
60 560 Bilper Avenue Lindenwold NJ 08021 11,059,835
61 450 Country Drive Dover DE 18801 7,356,340
62 A1 Bentley Road Eastampton NJ 08060 6,977,812
63 2 Goose Creek Drive Bloomington IL 61701 3,880,000
64 100 Commerce Way Hackensack NJ 07601 1,800,000
65 2140 Lake Park Boulevard Richardson TX 76085 25,800,000
66 280 Monterey Road San Jose CA 83111 5,100,000
67 2056 US Highway 45 Bypass South Trenton TN 35382 1,072,000
68 445 SW 27th Avenue Ft. Lauderdale FL 33312 600,000
69 14811 Farm Creek Drive Woodbridge VA 22181 2,400,000
70 3 & 11 Caledon Court Greenville SC 29815 2,822,060
71 Summary Page Multiple NY Multiple 6,000,000
72 200 Dunn Road Lyons NY 14489
73 2803 McLane Drive Lysander NY 13027
74 2702, 2600, 2828 North 44th Street Phoenix AZ 85004 16,000,000
75 2061-2071 N. Washington Street/Route 531 Hanover MA 02039 4,150,000
76 19770 North Freeway Spring TX 77373 2,300,000
77 9501 E. Shea Boulevard Scotsdale AZ 85260 24,700,000
78 4834 East Gettysburg Avenue Fresno CA 83726 2,683,000
79 2558 Pearl Buck Road Bristol PA 19077 4,118,635
80 315 Park Avenue South New York NY 10010 87,200,000
81 5070 E. Ashlan Avenue Fresno CA 93727 2,300,000
82 15000 North Taluro Boulevard Phoenix AZ 85002 1,725,000
83 702-704 North Azusa Avenue West Covina CA 91791 3,600,000
84 105 Eagle Vista Parkway Atlanta GA 30338 17,681,500
85 100 Eagle Vista Parkway Atlanta GA 30336 11,225,000
86 1545 Spruce Terrace Tampa FL 33637 4,000,000
87 1800 East Palo Verde Street Yuma AZ 85365 1,850,000
88 951 SW 11th Street and 1020 SW Depot Avenue Gainesville FL 32801 1,250,000
89 3424 & 3416 Dale Road, and 2906 Venaman Avenue Modesto CA 95356 1,500,000
90 3685-3595 Central Avenue Fort Myers FL 33901 2,175,000
91 6400 North Armenta Avenue Tampa FL 33804 1,850,000
92 871 Crowfield Blvd Goose Creek SC 29202 3,160,000
93 330 Gough Street and 280 Fall Street San Francisco CA 94102 10,000,000
94 7400 West Judge Perez Drive Arabi LA 70002 5,560,000
95 2450 Savarn Avenue Valeria LA 70001 8,500,000
96 13855 Superior Road East Cleveland OH 44118 4,060,000
97 701 Gateway Boulevard South San Francisco CA 84050 34,000,000
98 3860 Flagard Boulevard Irving TX 76053 14,900,000
99 3848 Mission Inn Avenue Riverdale CA 92501 18,000,000
100 300 10th Street Clarion IA 80525 2,600,000
101 14158-14255 SW Brigadoon Court Beaverton OR 97005 3,300,000
102 3315 NE 112th Avenue Vancouver WA 96882 4,600,000
103 9600 SW Oak Street Tigard OR 97220 7,370,000
104 520 SW Sixth Avenue Portland OR 97204 8,900,000
105 318 SW Washington Street Portland OR 97204 5,780,000
106 1750 112th Avenue, NE Bellevue WA 95004 16,500,000
107 2811 Keswick Village Court Conyers GA 30012 16,900,000
108 2520 LaJuana Drive Biloxi MS 36531 9,520,000
109 6360 San Felipe Road Houston TX 77057 11,060,000
110 18500 Northchase Drive Houston TX 77080 9,163,050
111 2050 Grayson Drive Grapevine TX 76061 20,600,000
112 38-40 East Colorado Blvd. Pasadena CA 91105 1,120,000
113 857 Tenacity Drive Longmont CO 80504 882,605
114 8411 Cedarwood Avenue Lawrence KS 86046 1,600,000
115 303 Goody Road Bacliff TX 77518 650,000
116 28831 Cabot Road Mission Viejo CA 92603 765,000
117 28821 Cabot Road Mission Viejo CA 92659 745,000
118 326 Truesdale Drive Chula Vista CA 92138 4,060,000
119 188 Main Street Highland Falls NY 10928 1,225,000
120 14901 S. E. 272 Street Kent WA 98042 8,500,000
121 2816 East Hanna Avenue Tampa FL 33610 3,030,000
122 5721-45 Morris Street Philadelphia PA 19144 1,100,000
123 500-502 West Chelton Avenue Philadelphia PA 19144 856,000
124 523-529 West Chelton Avenue Philadelphia PA 19144 1,240,812
125 Various Various VARIOUS various 1,420,000
126 11006 Grissom Lane Dallas TX 75225
127 13777 Bee Street Farmers Branch TX 75234
128 1632 Newport Blvd. Costa Mesa CA 92627 881,000
129 7900 Florin Road Sacramento CA 93826 2,250,000
130 11901 W. McDonald Road Avondale AZ 95323 1,400,000
131 8771 W. Pico Boulevard Los Angeles CA 9?035 1,307,000
132 6760 Minnick Road, 6773 Rapids Road Lockport NY 14094 6,430,000
133 4013 Premier Avenue Memphis TN 35118 2,100,000
134 7156 Winton Way Winton CA 95088 1,850,000
135 7434 Louis Pasteur Drive San Antonio TX 78228 2,900,000
136 360 30th Avenue Santa Cruz CA 95062 2,300,000
137 1722 Mangrove Avenue Chico CA 95826 1,500,000
138 3600 Lendie Drive Wichita Falls TX 76306 1,550,000
139 1280, 1300, 1200 North Johnson Avenue El Cajon CA 92020 6,685,000
140 33301 -33309 1st Avenue South Federal Way WA 98003 3,600,000
141 800 California Street Mountain View CA 94040 5,000,000
142 24922 Mulranda Blvd. Lake Forest CA 92800 2,400,000
143 12285 McNulty Blvd. Philadelphia PA 98118 2,150,000
144 11640, 11880, 11904, 11954 LaCinega Blvd. Del Alta CA 90250 5,400,000
145 2000 Parson Street Costa Mesa CA 92627 3,500,000
146 6820 Lakeside Road West Palm Beach FL 33411 1,255,000
147 20250 Acacia Street Newport Beach CA 92640 3,000,000
148 7230 4th Street North St. Petersburg FL 33702 3,500,000
149 FM 741Towns Road Waco TX 78827 1,950,000
150 2333 North Broadway Santa Ana CA 92708 2,800,000
151 815 - 819 E. Colorado Street Glendale CA 91205 2,235,000
152 30158 Autumn Wood Drive Huntsville AL 35816 2,600,000
153 3085 Raid Road Grand Blanc NJ 48438 15,700,000
154 456 East Mission Road San Marcos CA 92078 1,500,000
155 1500 S. Christopher Columbus Boulevard Philadelphia PA 19147 2,843,500
156 1195 South Diamond Bar Boulevard Diamond Bar CA 91765 1,050,000
157 305-327 East Vernon Drive Normal IL 81761 7,400,000
158 3850-3960 East Patrick Lane Las Vegas NV 89120 1,800,000
159 Various Various Various Various 1,190,000
160 1104 Hershey Street Bloomington IL 61704
161 2 Wiledrob Bloomington IL 61704
162 601 Technology Drive Cecil Township PA 15317 40,900,000
163 2707-2709 Wildwood Circle & 2714-2718
Arlington Avenue Caldwell ID 83605 1,110,877
164 Various Various Various Various 2,925,000
165 8 Lafayette Place Hilton Head Island SC 25926
166 1 Park Lane Hilton Head Island SC 25926
167 28 Hunter Road Hilton Head Island SC 25926
168 849 High Street Palo Alto CA 94301 3,100,000
169 2487 Alum Rock Avenue San Jose CA 95118 4,800,000
170 3860 2nd Avenue Pocatello ID 63204 1,100,000
171 41716,41743 and 41789 Enterprise Circle Tamecula CA 92540 2,600,000
172 2019 NE 179th Street Ridgefield WA 88642 8,950,000
173 2315 Maricopa Street Torrance CA 80500 2,525,000
174 4701 West Pointe Boulevard Oklahoma City OK 73278 5,600,000
175 1180 and 1234 Palmetto Drive Gainesville GA 30500 8,000,000
176 222 North Muller Street Anaheim CA 92801 6,750,000
177 9587 Canoga Avenue Chatsworth CA 91311 3,520,000
178 100 West Jones Road Fostoria OH 44830 6,250,000
179 1403 Carson Road Birmingham AL 35215 2,425,000
180 1182 Redman Street Orlando FL 32639 11,000,000
181 21621 Sandia Avenue Apple Valley CA 92307 1,000,000
182 12400 Ford Road Farmers Branch TX 75234 4,275,000
183 34184 County Line Road Yucaipa CA 92399 1,500,000
184 14596 Olde Highway Bd. Flinn Springs CA 92021 1,350,000
185 46898 Jefferson Street Indlo CA 92301 3,820,000
186 11785 Beltsville Drive Beltsville MD 20705 16,000,000
187 580 Dewdrop Circle Forest Park OH 45240 12,500,000
188 11281 Willows Road Redmond WA 88062 10,500,000
189 3100 Soaring Gulls Drive Las Vegas NV 69128 2,315,000
190 945 W. Manor Drive Nogales AZ 85621 2,850,000
191 4261 Hilary Circle West Palm Beach FL 33408 2,760,000
192 8944 Balboa Avenue San Diego CA 92123 2,700,000
193 8350 S. Drive North Battle Creek MI 49014 1,650,000
194 843 Indian Creek Road Locust Grove GA 30248 4,000,000
195 7212 Kingston Pike Knoxville TN 37819 2,000,000
- ---------------------------------------------------------------------------------------------------------------------------------
Amortization Loan Term LTV Cut-off Lien Loan
No. Cut-off Balance Type (months) Year Built Value Position Purpose
- ---------------------------------------------------------------------------------------------------------------------------------
1 6,462,232 Balloon 120 1999 75.6% First Refinance
2 11,552,472 Balloon 120 1998 52.7% First Refinance
3 3,848,012 Balloon 120 1978 70.0% First Cash Out
4 6,173,055 Balloon 120 1970 73.8% First Purchase
5 6,496,406 Balloon 120 1997 88.0% First Cash Out
6 1,104,762 Balloon 120 1973 77.5% First Refinance
7 2,813,890 Balloon 120 1985 72.2% First Cash Out
8 2,120,255 Balloon 120 1978 73.2% First Refinance
9 1,191,968 Balloon 120 1976 72.5% First Refinance
10 2,495,404 Balloon 120 1999 63.4% First Cash Out
11 674,151 Balloon 120 1985 72.6% First Refinance
12 1,311,241 Balloon 120 1984 71.6% First Refinance
13 3,423,607 Balloon 120 1984 72.8% First Cash Out
14 2,258,256 Balloon 120 1986 72.8% First Refinance
15 855,952 Balloon 120 1982 72.8% First Cash Out
16 562,778 Balloon 120 1981 72.8% First Cash Out
17 1,194,690 Balloon 120 1985 72.8% First Cash Out
18 1,300,561 Balloon 120 1984 72.8% First Cash Out
19 2,009,716 Balloon 120 1987 72.8% First Refinance
20 1,052,706 Balloon 120 1978 76.4% First Purchase
21 1,529,788 Balloon 120 1984 72.6% First Refinance
22 1,502,633 Balloon 120 1988 72.8% First Refinance
23 1,854,021 Balloon 120 1983 72.8% First Cash Out
24 3,105,137 Balloon 120 1986 70.6% First Refinance
25 1,637,843 Balloon 120 1983 83.2% First Refinance
26 1,455,838 Balloon 120 1983 83.3% First Cash Out
27 1,002,617 Balloon 120 1983 68.1% First Refinance
28 3,602,267 Balloon 120 1985 60.1% First Refinance
29 1,840,554 Balloon 120 1955 62.4% First Cash Out
30 1,904,602 Balloon 144 1975 71.2% First Cash Out
31 724,481 Balloon 120 1992 58.6% First Refinance
32 419,811 Balloon 120 1988 50.0% First Refinance
33 1,067,777 Balloon 120 1980 73.0% First Cash Out
34 732,060 Balloon 120 1984 38.6% First Cash Out
35 584,062 Balloon 120 1956 68.7% First Refinance
36 831,019 Balloon 120 1979 73.1% First Refinance
37 691,112 Balloon 120 1981 81.6% First Refinance
38 597,238 Balloon 120 1970 56.9% First Purchase
39 458,518 Balloon 120 1963 61.1% First Refinance
40 313,897 Balloon 120 1996 63.5% First Purchase
41 735,422 Balloon 120 1958 73.6% First Purchase
42 719,020 Balloon 120 1996 54.3% First Cash Out
43 6,965,176 Balloon 120 1997 65.4% First Cash Out
44 3,299,672 Fully AM 120 1978 45.5% First Cash Out
45 2,429,391 Balloon 120 1998 84.6% First Cash Out
46 2,692,608 Balloon 120 1970 66.6% First Refinance
47 13,024,268 Balloon 119 1958 80.6% First Refinance
48 10,385,641 Balloon 120 1999 78.8% First Refinance
49 5,630,612 Balloon 120 1985 82.1% First Refinance
50 1,595,770 Balloon 120 1988 57.0% First Refinance
51 11,051,025 Balloon 120 Various 78.6% First Cash Out
52 0 120 1962 0.0%
53 0 120 1985 0.0%
54 0 120 1985 0.0%
55 7,586,617 Balloon 120 1988 79.8% First Refinance
56 6,977,522 Fully AM 88 1985 63.3% First Refinance
57 6,304,857 Hyper AM 120 1972 63.5% First Purchase
58 5,335,171 Hyper AM 120 1971 63.7% First Purchase
59 7,907,885 Hyper AM 120 1963 67.2% First Purchase
60 11,059,835 Hyper AM 120 1972 84.4% First Purchase
61 7,385,340 Hyper AM 120 1985 71.2% First Purchase
62 8,977,812 Hyper AM 120 1987 89.0% First Purchase
63 3,951,887 Balloon 120 1980 79.6% First Refinance
64 1,791,137 Balloon 120 1983 74.6% First Purchase
65 25,823,693 Balloon 120 1999 79.6% First Refinance
66 5,077,691 Balloon 120 1998 83.6% First Refinance
67 1,088,088 Balloon 120 1998 78.3% First Purchase
68 597,940 Balloon 120 1998 73.5% First Refinance
69 2,387,788 Balloon 120 1988 67.3% First Cash Out
70 2,913,188 Balloon 120 1987 72.8% First Refinance
71 6,870,012 Balloon 120 Various 71.8% First Refinance
72 0 Balloon 120 1938 0.0% First
73 0 Balloon 120 1958 0.0% First Purchase
74 17,945,951 Balloon 120 1972 74.8% First Refinance
75 4,180,415 Balloon 120 1998 68.8% First Cash Out
76 2,231,377 Balloon 120 1976 70.8% First Purchase
77 24,673,859 Balloon 120 1972 64.9% First Purchase
78 2,683,738 Balloon 120 1977 78.8% First Purchase
79 4,133,304 Balloon 120 1911 79.5% First Refinance
80 87,200,000 Balloon 120 1979 86.1% First Refinance
81 2,285,982 Balloon 120 2000 78.2% First Refinance
82 1,722,185 Balloon 120 1999 74.9% First Purchase
83 3,595,505 Balloon 120 1999 78.5% First Refinance
84 12,681,152 Balloon 120 1999 78.5% First Refinance
85 11,202,104 Balloon 120 1984 77.3% First Cash Out
86 3,878,855 Balloon 81 1990 79.6% First Purchase
87 1,834,892 Balloon 120 1984 50.2% First Cash Out
88 1,275,488 Balloon 120 1978 79.7% First Cash Out
89 1,469,445 Balloon 120 1974 45.5% First Cash Out
90 2,167,279 Balloon 120 1965 76.9% First Cash Out
91 1,843,483 Balloon 120 1991 79.1% First Purchase
92 3,150,512 Balloon 120 2000 79.0% First Refinance
93 8,879,713 Balloon 120 1999 70.1% First Refinance
94 6,538,242 Balloon 120 1982 78.1% First Refinance
95 8,491,526 Balloon 120 1963 78.3% First Refinance
96 4,071,982 Balloon 120 1998 78.8% First Purchase
97 33,852,059 Balloon 120 2000 57.5% First Refinance
98 14,854,242 Balloon 120 1978 71.8% First Refinance
99 17,812,607 Balloon 108 1997 62.9% First Purchase
100 2,577,382 Balloon 120 1952 79.3% First Purchase
101 3,295,628 Balloon 120 1991 71.6% First Purchase
102 4,593,859 Balloon 120 1985 75.6% First Purchase
103 7,360,076 Balloon 120 1925 80.4% First Purchase
104 8,891,149 Balloon 120 1910 80.6% First Purchase
105 5,772,331 Balloon 120 1939 87.9% First Purchase
106 16,483,787 Balloon 120 1996 78.7% First Purchase
107 18,900,000 Balloon 120 1995 79.9% First Purchase
108 9,520,000 Balloon 120 1970 80.0% First Refinance
109 11,080,000 Balloon 120 1979 80.0% First Refinance
110 9,163,050 Balloon 120 1997 70.5% First Refinance
111 20,800,000 Balloon 120 1993 80.0% First Refinance
112 1,082,733 Balloon 120 2000 37.3% First Refinance
113 658,990 Balloon 120 1984 71.4% First Refinance
114 1,788,888 Balloon 120 1975 79.4% First Refinance
115 542,802 Balloon 120 1939 78.7% First Refinance
116 749,007 Balloon 120 1939 85.1% First Refinance
117 739,274 Balloon 120 1999 62.1% First Refinance
118 3,938,275 Balloon 120 1999 66.5% First Refinance
119 1,216,585 Balloon 120 1999 70.5% First Purchase
120 6,781,942 Balloon 120 1985 71.2% First Refinance
121 3,046,659 Balloon 120 1958 63.8% First Refinance
122 1,034,247 Balloon 120 1930 78.1% First Refinance
123 843,983 Balloon 120 1930 78.9% First Refinance
124 1,224,812 Balloon 120 1920 78.0% First Refinance
125 1,408,080 various 74.3% Refinance
126 1971
127 Balloon 120 1982 First
128 973,073 Balloon 120 1970 64.9% First Refinance
129 2,225,659 Balloon 120 1988 69.5% First Purchase
130 1,385,782 Balloon 120 1978 72.4% First Purchase
131 1,300,973 Balloon 120 1937 54.0% First Refinance
132 3,096,757 Balloon 120 1999 76.5% First Refinance
133 2,075,348 Balloon 120 1964 69.2% First Refinance
134 1,640,209 Balloon 120 1985 70.6% First Refinance
135 2,648,768 Balloon 120 1985 53.2% First Refinance
136 2,387,654 Balloon 120 1932 70.4% First Purchase
137 1,492,603 Balloon 120 1958 58.3% First Purchase
138 1,830,488 Balloon 120 1971 71.2% First Purchase
139 6,627,050 Balloon 120 1993 72.8% First Refinance
140 3,579,573 Balloon 120 1980 67.5% First Purchase
141 4,838,778 Balloon 120 2000 62.5% First Const. Takeout
142 1,978,725 Fully Amortizing 120 1972 30.0% First Refinance
143 2,238,795 Balloon 120 1986 74.6% First Purchase
144 6,370,297 Balloon 120 2000 71.7% First Refinance
145 3,450,711 Balloon 120 1968 62.2% First Refinance
146 1,278,859 Balloon 120 1988 63.9% First Refinance
147 2,885,443 Balloon 120 1990 65.0% First Purchase
148 3,450,821 Balloon 120 1949 75.7% First Refinance
149 1,839,711 Balloon 84 1999 79.2% First Purchase
150 2,784,019 Balloon 120 1967 63.0% First Refinance
151 2,223,743 Balloon 120 1885 73.8% First Refinance
152 2,388,168 Balloon 120 1884 78.4% First Refinance
153 15,842,813 Balloon 120 1855 74.5% First Refinance
154 1,459,428 Balloon 120 1922 73.7% First Refinance
155 2,827,838 Balloon 119 1922 89.0% First Refinance
156 1,045,100 Balloon 120 1986 33.2% First Purchase
157 7,351,510 Balloon 120 2000 78.4% First Refinance
158 1,490,976 Balloon 120 1996 67.8% First Const. Takeout
159 1,184,449 Balloon 120 Various 76.8% First Refinance
160 1988 First
161 1978 First
162 10,817,504 Balloon 120 2000 70.0% First Const. Takeout
163 1,108,488 Balloon 120 1995 7.4% First Refinance
164 2,913,677 Balloon 120 Various 73.3% First Purchase
165 1997
166 1985
167 1998
168 3,007,409 Balloon 120 1924 55.4% First Refinance
169 4,688,358 Balloon 120 2000 71.5% First Const. Takeout
170 1,089,144 Balloon 180 1984 88.1% First Refinance
171 2,791,285 Balloon 120 1990 80.7% First Refinance
172 8,824,885 Balloon 120 1998 76.8% First Const. Takeout
173 2,909,079 Balloon 120 1976 74.8% First Refinance
174 5,579,602 Balloon 120 2000 88.5% First Purchase
175 7,870,079 Balloon 120 1991 74.5% First Purchase
176 5,729,682 Balloon 120 1971 73.5% First Refinance
177 3,609,426 Balloon 120 1977 70.2% First Purchase
178 8,172,130 Balloon 120 1884 74.3% First Purchase
179 2,417,206 Balloon 120 1974 75.2% First Refinance
180 10,959,222 Balloon 120 1974 78.8% First Refinance
181 998,522 Balloon 120 1989 52.3% First Refinance
182 4,264,098 Balloon 120 1998 74.8% First Const. Takeout
183 1,495,494 Balloon 120 1957 72.2% First Refinance
184 1,348,511 Balloon 120 1980 85.0% First Refinance
185 3,008,101 Balloon 120 1987 79.8% First Purchase
186 15,972,832 Balloon 120 1989 51.5% First Refinance
187 12,461,491 Balloon 120 1965 78.6% First Refinance
188 10,461,491 Balloon 120 1965 74.4% First Refinance
189 2,311,246 Balloon 120 1997 66.5% First Purchase
190 2,545,756 Balloon 120 1971 75.1% First Refinance
191 2,739,220 Balloon 120 1856 78.4% First Refinance
192 2,686,211 Balloon 120 1957 45.5% First Refinance
193 1,635,848 Balloon 120 2000 89.9% First Purchase
194 3,882,202 Balloon 120 1970 67.7% First Purchase
195 1,994,488 Balloon 120 1957 72.5% First Purchase
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY
SECURED CREDITOR IMPAIRED PROPERTY POLICY
THIS POLICY HAS CERTAIN PROVISIONS AND REQUIREMENTS UNIQUE TO IT AND MAY BE
DIFFERENT FROM OTHER POLICIES THE INSURED MAY HAVE PURCHASED. PLEASE READ THE
ENTIRE POLICY CAREFULLY TO DETERMINE THE INSURED'S RIGHTS AND DUTIES, AND WHAT
IS AND IS NOT COVERED. VARIOUS PROVISIONS THROUGHOUT THIS POLICY RESTRICT OR
EXCLUDE COVERAGE.
COVERAGE IS AFFORDED ONLY FOR THOSE INSURED PROPERTIES SCHEDULED ON THE POLICY.
DEFINED TERMS APPEAR IN BOLDFACE TYPE.
In consideration of the payment of the premium, in reliance upon the statements
in the Declarations and Secured Creditor Impaired Property Application
incorporated by reference and made a part hereof, and pursuant to all of the
terms of this Policy, the Company agrees with the INSURED as follows:
I. INSURING AGREEMENT
A. COVERAGE A - DEFAULT AND POLLUTION CONDITIONS
The Company will indemnify the INSURED for LOSS, if during the POLICY
PERIOD and prior to FORECLOSURE, there is a DEFAULT by a BORROWER on a
COMMERCIAL REAL ESTATE LOAN secured by an INSURED PROPERTY, LEASEHOLD or FIXED
ASSETS, and there are POLLUTION CONDITIONS on, under or emanating from the same
INSURED PROPERTY prior to or while the COMMERCIAL REAL ESTATE LOAN is in
DEFAULT.
B. COVERAGE B - THIRD-PARTY CLAIMS
The Company agrees to pay LOSS on behalf of the INSURED that the INSURED
becomes legally obligated to pay as a result of CLAIMS first made against the
INSURED and reported to the Company, in writing, during the POLICY PERIOD, for
BODILY INJURY, PROPERTY DAMAGE or CLEAN-UP COSTS resulting from POLLUTION
CONDITIONS on, under or emanating from an INSURED PROPERTY.
C. COVERAGE C - CLEAN-UP OF POLLUTION CONDITIONS
The Company agrees to pay LOSS on behalf of the INSURED, after
FORECLOSURE, if CLEAN-UP COSTS are sustained because there are POLLUTION
CONDITIONS on, under or emanating from the INSURED PROPERTY during the POLICY
PERIOD provided that where required, such POLLUTION CONDITIONS have been
reported by the INSURED to the appropriate governmental agency in compliance
with applicable ENVIRONMENTAL LAWS, in effect as of the date of discovery.
D. LEGAL EXPENSE AND DEFENSE - COVERAGE B
The Company shall have the right and duty to investigate and defend any
CLAIM described in Coverage B. The Company's duty to defend or continue
defending any such Claim, and to pay any LOSS, shall cease once the applicable
limit of coverage, as described in Section V. LIMITS OF COVERAGE; DEDUCTIBLE has
been exhausted. Investigation and defense costs, charges and expenses are
included in LOSS, reduce the applicable limit of liability, and are included
within the Deductible amount shown in Item 4 of the Declarations.
E. INDEPENDENT COUNSEL - COVERAGE B
If the INSURED is entitled by law to select independent counsel to
defend the INSURED at the Company's expense, the attorney fees and all other
litigation expenses the Company must pay to that counsel are limited to the
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
competency, including experience in defending CLAIMS or suits similar to the one
pending against the INSURED and to require such counsel to have errors and
omissions insurance coverage. As respects to such counsel, the INSURED agrees
that counsel will timely respond to the Company's request for information
regarding the CLAIM.
Furthermore, the INSURED may at any time, by its signed consent, freely
and fully waive its rights to select independent counsel.
II. NOTICE REQUIREMENTS AND CLAIM PROVISIONS
It is a condition precedent to any rights afforded under this Policy that
the INSURED provide the Company with notice of DEFAULT and POLLUTION CONDITIONS,
or LOSS as follows:
A. The INSURED shall give written notice to the Company, as soon as
possible but not later than forty-five (45) days after the INSURED first learns
of the DEFAULT and POLLUTION CONDITIONS, or LOSS to:
Manager, Pollution Insurance Products Unit
MG Technical Services, Inc.
Environmental Claims Department
80 Pine Street, Sixth Floor
New York, New York 10005
And
Division Attorney - Pollution Legal Liability
American International Specialty Lines Insurance Company
175 Water Street, Twelfth Floor
New York, New York 10038
or other address(es) as substituted by the Company in writing.
B. The notice shall include, at a minimum, information sufficient to
identify the INSURED, the INSURED PROPERTY, the names of the persons with
knowledge regarding the time, place, cause, nature of and other circumstances of
the DEFAULT and POLLUTION CONDITIONS, or LOSS.
C. The notice may be provided only by the INSURED and may not be delegated
to third parties. It is not a defense to this condition precedent that the
Company learned of the DEFAULT and POLLUTION CONDITIONS, or LOSS through any
independent means.
III. DUTIES OF THE INSURED IN THE EVENT OF LOSS
A. The INSURED shall furnish the following to the Company as soon as
available and practicable after the INSURED first learns of the DEFAULT and
POLLUTION CONDITIONS, or LOSS:
1. all correspondence between the INSURED and any claimant;
2. all demands, summons, notices or other processes or papers filed with
a court of law, administrative agency or investigative body;
3. all technical reports, laboratory data, field notes or any other
documents generated by persons hired by the INSURED to investigate or remediate
POLLUTION CONDITIONS:
4. all expert reports, investigations and data collected by experts
retained by the INSURED, whether or not the INSURED intends to use the material
for any purpose;
5. all other information developed or discovered by the INSURED
concerning the DEFAULT and POLLUTION CONDITIONS, or LOSS.
B. No INSURED shall voluntarily enter into any settlement, make any
payment, assume any obligation, or incur any costs, charges or expenses in the
defense or investigation of a CLAIM without the Company's consent, which shall
not be unreasonably withheld or delayed, except at the INSURED'S own cost, or in
response to an emergency or pursuant to ENVIRONMENTAL LAWS which require
immediate remediation of POLLUTION CONDITIONS.
C. If the INSURED refuses to consent to any settlement within the limits
of coverage of this Policy recommended by the Company and acceptable to the
claimant, the Company's duty to defend the INSURED shall then cease and the
INSURED shall thereafter negotiate or defend such CLAIM independently of the
Company and the Company's liability shall not exceed the amount, less the
Deductible or any outstanding Deductible balance, for which the CLAIM could have
been settled if such recommendation was consented to.
D. The INSURED must cooperate with the Company and offer all reasonable
assistance in the investigation and defense of CLAIMS. The Company may require
that the INSURED submit to examination under oath, and attend hearings,
depositions and trials. In the course of investigation or defense, the Company
may require written statements or the INSURED'S attendance at meetings with the
Company. The INSURED must reasonably assist the Company in effecting settlement,
securing and providing evidence and obtaining the attendance of witnesses, all
without charge to the Company.
IV. EXCLUSIONS
This Policy does not apply to LOSS:
A. due to or for any punitive, exemplary or multiplied portion of multiple
damages or any civil or administrative fines, penalties or assessments, except
where such damages, fines, penalties or assessments are insurable by applicable
law; or any criminal fines, penalties or assessments.
B. arising as a result of liability of others assumed by the INSURED under
any contract or agreement, unless the liability of the INSURED would have
attached in the absence of such contract or agreement.
C. arising out of any obligation of the INSURED under any worker's
compensation, unemployment compensation or disability benefits law or similar
law.
D. arising from BODILY INJURY to an employee of the INSURED or its parent,
subsidiary or affiliate arising out of and in the course of employment by the
INSURED or its parent, subsidiary or affiliate. This exclusion applies (1)
whether the INSURED may be liable as an employer or in any other capacity; and
(2) to any obligation to share damages with or repay third parties that must pay
damages because of this injury.
E. arising from POLLUTION CONDITIONS resulting from or attributable to the
INSURED'S intentional, knowing, 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.
F. arising from POLLUTION CONDITIONS resulting from an intentionally
illegal act or omission of the INSURED, if the INSURED knew that the POLLUTION
CONDITIONS would result.
G. arising from POLLUTION CONDITIONS existing prior to the effective date
of coverage for an INSURED PROPERTY, and not otherwise specifically excluded by
endorsement to this Policy, if as of such date the INSURED knew that such
POLLUTION CONDITIONS could give rise to a LOSS under this Policy and failed to
disclose such POLLUTION CONDITIONS to the Company, or the Company did not
otherwise learn of such POLLUTION CONDITIONS from engineering reports,
environmental spreadsheets, the Secured Creditor Impaired Property
Questionnaire, or from other technical reports the Company obtained
independently.
H. by one INSURED against any other person or entity who is also an INSURED
under this Policy.
I. for costs, charges or expenses incurred by the INSURED for goods
supplied or services performed by the staff or salaried employees of the
INSURED, or its parent, subsidiary or affiliate, unless such costs, charges or
expenses are incurred with the prior written approval of the Company in its sole
discretion.
J. arising from the presence of asbestos or any asbestos-containing
materials installed in or on any building or other structure.
K. arising from the presence of lead-based paint applied to any real or
personal property on or under an INSURED PROPERTY.
V. LIM1TS OF COVERAGE; DEDUCTIBLE
Regardless of the number of POLLUTION CONDITIONS, INSUREDS, CLAIMS, LOSSES
or claimants under this Policy, the following limits of coverage apply:
A. POLICY AGGREGATE LIMIT
The Company's total liability for all LOSS covered under this Policy shall
not exceed the "Total all Losses" stated in Item 3 of the Declarations. The
purchase of an EXTENDED REPORTING PERIOD pursuant to Section VII. of this Policy
shall not serve to reinstate or increase the "Total all Losses".
B. EACH LOSS LIMIT
Subject to and included in the limit of liability described in Paragraph A
above, the most the Company will pay in excess of the deductible amount shown in
Item 4 of the Declarations for each LOSS under Coverage A and B and for all
CLEAN-UP COSTS arising from the same, continuous or related POLLUTION CONDITIONS
under Coverage C, is the "EACH LOSS" limit of liability shown in Item 3 of the
Declarations.
C. RELATED POLLUTION CONDITIONS
1. Solely with respect to Coverage B, if a CLAIM for BODILY INJURY,
PROPERTY DAMAGE or CLEAN-UP COSTS is first made against the INSURED and reported
to the Company during this POLICY PERIOD, all CLAIMS for BODILY INJURY, PROPERTY
DAMAGE or CLEAN-UP COSTS arising from the same, continuous or related POLLUTION
CONDITIONS, which are made against the INSURED and reported under a subsequent
Secured Creditor Impaired Property Policy issued by the Company or its
affiliate, shall be deemed to have been first made and reported under this
Policy and shall be subject to the Limits of Liability under this Policy.
Coverage under this Policy for such CLAIMS made against the INSURED and
reported under a subsequent Secured Creditor Impaired Property Policy as
described in Paragraph 1 above, shall not apply unless at the time such CLAIMS
are first made and reported the INSURED has maintained with the Company or its
affiliate Secured Creditor Impaired Property coverage substantially the same as
this coverage on a successive, uninterrupted basis since the first such CLAIM
was made against the INSURED and reported to the Company.
2. All LOSS arising from the same, continuous, or related POLLUTION
CONDITIONS shall be subject to one "Each Loss" limit of liability. In the event
coverage is provided under more than one of Coverages A, B and C, only one "Each
Loss" limit stated in Item 3 of the Declarations shall apply.
D. DEDUCTIBLE
Subject to Section V. LIMITS OF COVERAGE; DEDUCTIBLE, Paragraphs A. and
B above, this Policy is to pay all LOSS in excess of the "Each Loss" Deductible
amount stated in Item 4 of the Declarations. The Deductible amount includes
investigation and defense costs, charges and expenses, and applies to all LOSS
arising from the same, related or continuous POLLUTION CONDITIONS.
The INSURED shall promptly reimburse the Company for advancing any
payment of LOSS falling within the Deductible.
VI. DEFINITIONS
A. BODILY INJURY means physical injury, sickness, disease, mental anguish
or emotional distress sustained by any person, including death resulting
therefrom.
B. BORROWER means any obligor on a COMMERCIAL REAL ESTATE LOAN, including
without limitation, any guarantor therefor, the holder of any ownership interest
in an INSURED PROPERTY and any other person, entity or organization controlled
by or under common control of the obligor.
C. CLAIM means a written demand received by the INSURED seeking a remedy
and alleging liability or responsibility on the part of the INSURED for LOSS
under Coverage B.
D. CLEAN-UP COSTS means expenses, including reasonable and necessary legal
expenses, incurred with the Company's written consent, incurred in the
investigation (including remedial studies and design), removal, remediation
(including the associated monitoring), or disposal of soil, surfacewater,
groundwater or other contamination:
(1) to the extent required by ENVIRONMENTAL LAWS, or specifically
mandated by court order, the government or any political
subdivision of the United States of America or any state thereof,
or Canada; or
(2) which have been actually incurred by the government or any
political subdivision of the United States of America or any
state thereof, or Canada or any province thereof, or by
third-parties.
E. COMMERCIAL REAL ESTATE LOAN means an obligation evidenced by loan
documents which is secured by the INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as
scheduled in Item 5 of the Declarations, and in which loan documents the INSURED
relies upon such INSURED PROPERTY, LEASEHOLD or FIXED ASSETS as security for the
loan and obtains a perfected mortgage or other security interest.
F. DEFAULT means the failure of a BORROWER to make any part of a scheduled;
periodic or final payment by the due date under the COMMERCIAL REAL ESTATE LOAN
or the BORROWER'S failure to comply with items designated as the causes or
events of default as provided by the terms of the COMMERCIAL REAL ESTATE LOAN.
The DEFAULT shall be deemed to occur on the day after such due date under the
COMMERCIAL REAL ESTATE LOAN provided that the DEFAULT was not cured within the
applicable grace period as provided by the terms of the COMMERCIAL REAL ESTATE
LOAN. For purposes of this Policy, the mere presence of a POLLUTION CONDITION
shall not be deemed a cause or event of default.
G. ENVIRONMENTAL LAWS means any federal, state or local laws (including but
not limited to statutes, regulations, rules, ordinances, guidance documents, and
governmental or administrative orders and directives) which are applicable to
POLLUTION CONDITIONS.
H. FIXED ASSETS means fixtures, plant and equipment at or on an INSURED
PROPERTY owned by the BORROWER, which are depreciated over their useful life.
I. Foreclosure means taking title to an interest in the INSURED PROPERTY,
Leasehold or FIXED ASSETS through the enforcement of a lien, mortgage, deed of
trust or other secured interest under a COMMERCIAL REAL ESTATE LOAN, whether
through legal proceedings or otherwise.
J. INSURED means the NAMED INSURED, TRUSTEE or SERVICER, and any director,
officer, partner or employee thereof while acting within the scope of his or her
duties as such, and any such additional INSURED added by endorsement to this
Policy.
K. INSURED PROPERTY means the real property, including any FIXED ASSETS or
LEASEHOLD, scheduled in Item 5 of the Declarations on the date of the LOSS.
L. LEASEHOLD means the BORROWER'S right to possession of leased INSURED
PROPERTY pursuant to a written lease agreement.
M. LOSS means:
1. With respect to Coverage A, the OUTSTANDING BALANCE on the date
of Default, including principal and accrued interest from the
date of Default until the date that the OUTSTANDING BALANCE is
paid, plus interest on any advances of scheduled monthly payments
made by the Insured from the date of DEFAULT, plus advances and
interest on advances for PROPERTY PROTECTION actually paid by the
INSURED pursuant to the COMMERCIAL REAL ESTATE LOAN or, if
applicable, a POOLING AND SERVICING AGREEMENT. Such advances and
interest on advances made for PROPERTY PROTECTION are limited to
ten (10) percent of the OUTSTANDING BALANCE on the date of
DEFAULT.
2. With respect to Coverage B, (a) monetary awards or settlements of
compensatory damages for BODILY INJURY, PROPERTY DAMAGE or
CLEAN-UP Costs; (b) CLEAN-UP COSTS; and (c) costs, charges and
expenses incurred in the defense, investigation and adjustment of
CLAIMS.
3. With respect to Coverage C, CLEAN-UP COSTS,
N. NAMED INSURED means the party, person or entity named in Item 1 of the
Declarations.
O. NATURAL RESOURCE DAMAGE means physical injury to or destruction of,
including the resulting loss of value of, land, fish, wildlife, biota, air,
water, groundwater, drinking water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or otherwise controlled by
the United States (including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.)), any state or local government, any foreign government,
any Indian tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe.
P. OUTSTANDING BALANCE means the principal amount of outstanding
indebtedness owed to the INSURED as of the date of DEFAULT calculated pursuant
to the terms and conditions of the COMMERCIAL REAL ESTATE LOAN plus interest as
described in the definition of LOSS. OUTSTANDING BALANCE shall not include
penalties or other fees arising out of a DEFAULT.
Q. POLICY PERIOD means the period set forth in Item 2 of the Declarations
or any shorter period arising as a result of:
1. cancellation of this Policy; or
2. the deletion by the Company of a particular INSURED PROPERTY at
the NAMED INSURED'S written request, but solely with respect to
that INSURED PROPERTY.
R. POLLUTION CONDITIONS means:
1. with respect to Coverages A and C, the discharge, dispersal, release
or escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, in concentrations or
amounts exceeding maximum levels allowed by applicable ENVIRONMENTAL LAWS, or by
governmental or court order or directive, acting under the authority granted by
ENVIRONMENTAL LAWS, provided such conditions are not naturally present in the
environment in the concentration or amounts discovered.
2. with respect to Coverage B, the discharge, dispersal, release, or
escape of any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, and waste
materials into or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided such conditions
are not naturally present in the environment in the concentration or amounts
discovered.
S. POOLING AND SERVICING AGREEMENT means the agreement governing the
servicing of the COMMERCIAL REAL ESTATE LOAN(S).
T. PROPERTY DAMAGE means:
1. Physical injury to or destruction of tangible property of parties
other than the INSURED, including the resulting loss of use or
diminution in value thereof;
2. Loss of use, but not diminution in value, of tangible property of
parties other than the INSURED, which has not been physically
injured or destroyed:
3. NATURAL RESOURCE DAMAGE.
U. PROPERTY PROTECTION means reasonable expenses necessary to protect the
INSURED PROPERTY.
V. SERVICER means the party(ies) to the POOLING AND SERVICING AGREEMENT
responsible for servicing the COMMERCIAL REAL ESTATE LOAN(S).
W. TRUSTEE means the trustee under the POOLING AND SERVICING AGREEMENT.
VII. EXTENDED REPORTING PERIOD - COVERAGE B
Solely with respect to Coverage B, the INSURED shall be entitled to an
Automatic Extended Reporting Period, and (with certain exceptions as described
in paragraph B of this Section) entitled to purchase an Optional Extended
Reporting Period Endorsement upon termination of coverage as defined in
Paragraph B.3. of this Section. Neither the Automatic nor the Optional Extended
Reporting Period shall reinstate or increase the Policy Aggregate Limit of this
Policy.
A. AUTOMATIC EXTENDED REPORTING PERIOD
Provided the INSURED has not purchased any other insurance to replace
Coverage B which applies to a CLAIM otherwise covered under Coverage B, the
NAMED INSURED shall have a period of forty-five (45) days following the
effective date of termination of coverage in which to provide written notice to
the Company of CLAIMS first made and reported within the Automatic Extended
Reporting Period. A CLAIM first made and reported within the Automatic Extended
Reporting Period will be deemed made on the last day of the POLICY PERIOD,
provided the CLAIM arises from POLLUTION CONDITIONS that commenced before the
end of the POLICY PERIOD and is otherwise covered by this Policy. The Automatic
Extended Reporting Period shall not apply if the Optional Extended Reporting
Period becomes effective.
B. OPTIONAL EXTENDED REPORTING PERIOD
The NAMED INSURED shall be entitled to purchase an Optional Extended
Reporting Period upon termination of coverage, as defined in Paragraph 3 below,
except in the event of nonpayment of premium.
1. A CLAIM first made and reported within the Optional Extended
Reporting Period, if purchased in accordance with the provisions contained in
Paragraph 2 below, will be deemed to have been made on the last day of the
POLICY PERIOD, provided that the CLAIM arises from POLLUTION CONDITIONS that
commenced before the end of the POLICY PERIOD and is otherwise covered by this
Policy.
2. The Company shall issue an endorsement providing an Optional Extended
Reporting Period of up to thirty-six (36) months from termination of coverage
under this Policy for any INSURED PROPERTY provided that the NAMED INSURED:
a. makes a written request for such endorsement which the
Company receives within forty-five (45) days after
termination of coverage as defined herein; and
b. pays the additional premium when due. If that additional
premium is paid when due, the Optional Extended Reporting
Period may not be canceled, provided that all other terms
and conditions of the Policy are met.
3. Termination of coverage occurs at the time of:
a. cancellation or nonrenewal of this Policy by the NAMED
INSURED or by the Company;
b. the Company's deletion from Item 5 of the Declarations of
this Policy of a location which was an INSURED PROPERTY, at
the Insured's written request, but solely with respect to
that INSURED PROPERTY.
4. The Optional Extended Reporting Period is available to the NAMED
INSURED for not more than 200% of the premium the Company has charged for the
INSURED PROPERTY for which the Extended Reporting Period is purchased.
VIII. CONDITIONS
A. ASSIGNMENT - This Policy may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
Assignment of interest under this Policy shall not bind the Company until its
consent is endorsed thereon. However, this Policy may be assigned by the NAMED
INSURED, without the Company's prior written consent to the SERVICER or TRUSTEE,
or another entity which has, directly or indirectly, invested in or loaned money
in connection with an INSURED PROPERTY. The NAMED INSURED must provide the
Company written notice of such assignment within forty-five (45) days of the
effective date of the assignment.
B. SUBROGATION
1. To the extent of any payment under this Policy, the Company shall be
subrogated to all the INSURED'S rights of recovery therefor against any person
or organization, with the exception of the BORROWER; provided that if the
Company indemnifies the INSURED for the OUTSTANDING BALANCE under Coverage A,
the Company reserves its right of FORECLOSURE against the BORROWER.
2. The INSURED shall execute and deliver instruments and papers and do
whatever else is reasonably necessary to secure such rights including without
limitation, assignment of the INSURED'S rights against any person or
organization, with the exception of the BORROWER, who caused POLLUTION
CONDITIONS on account of which the Company made any payment under this Policy.
3. Any recovery as a result of subrogation proceedings shall accrues
first to the INSURED to the extent of any LOSS in excess of the limit of
coverage, then to the Company to the extent of its payment under the policy, and
then to the INSURED to the extent of its Deductible. Expenses incurred in such
subrogation proceedings shall be apportioned among the interested parties in the
recovery in the proportion that each interested party's share in the recovery
bears to the total recovery. Any recoveries received by the Company via
subrogation net of expenses incurred in making such recovery shall serve to
reinstate the "Total all Losses" limit of liability stated in Item 3 of the
Declarations, but only to the extent of such net recovery.
4. The INSURED shall do nothing to prejudice the Company's rights of
Subrogation.
C. CHANGES - Notice to any agent or knowledge possessed by any agent or by
any other person shall not effect a waiver or a change in any part of this
Policy or estop the Company from asserting any right under the terms of this
Policy; nor shall the terms of this Policy be waived or changed, except by
endorsement issued to form a part of this Policy.
D. SOLE AGENT - The NAMED INSURED first listed in Item 1 of the
Declarations shall act on behalf of all other INSUREDS, if any, for the payment
or return of premium, receipt and acceptance of any endorsement issued to form a
part of this Policy, and giving and receiving notice of cancellation or
nonrenewal and the exercise of the rights provided in the EXTENDED REPORTING
PERIOD clause.
E. CANCELLATION - This Policy may be canceled by the INSURED by surrender
thereof to the Company or any of its authorized agents or by mailing to the
Company written notice stating when thereafter the cancellation shall be
effective.
This Policy may be canceled by the Company only for nonpayment of
premium by mailing to the NAMED INSURED at the address shown in the Policy,
written notice stating when not less than ten (10) days thereafter cancellation
shall be effective. Proof of mailing of notice described in this Condition E
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. It the NAMED INSURED cancels, earned premium shall be computed in
accordance with the customary short rate table. If the Company cancels, earned
premium shall be computed pro rata. Premium adjustment may be either at the time
cancellation is effected or as soon as practicable after cancellation becomes
effective, but payment or tender of unearned premium is not a condition of
cancellation.
F. TERMINATION OF COVERAGE - In the event of the INSURED'S sale of a
COMMERCIAL REAL ESTATE LOAN, coverage under Coverages A and C will automatically
terminate as of the effective date of such sale for any INSURED PROPERTY
included in such sale. Coverage B, however, will continue for such INSURED
PROPERTY for the remainder of the POLICY PERIOD and EXTENDED REPORTING PERIOD,
if applicable.
G. CONCEALMENT OR FRAUD - This entire Policy shall be void if, whether
before or after LOSS is incurred or a CLAIM is first made, the INSURED has
willfully concealed or misrepresented any fact or circumstance in the Secured
Creditor Impaired Property Application material to the granting of coverage
under this Policy. In addition, coverage for any individual INSURED PROPERTY
shall be void if, whether before or after LOSS is incurred or a CLAIM is first
made, the INSURED has willfully concealed or misrepresented any fact or
circumstance material to the granting of coverage for the INSURED PROPERTY under
this Policy.
H. OTHER INSURANCE
1. Coverage A.
This insurance is primary. Our obligations are not affected by
any other insurance that may be primary.
2. Coverages B and C.
(a) This insurance is primary. Our obligations are not affected
unless any other insurance applicable to LOSS covered by
this Policy is also primary. Then, we will share with all
other insurance by the method described in paragraphs (b)
and (c) below.
(b) If other primary insurance permits contribution by equal
shares, we will follow this method also. Under this approach
each insurer contributes equal amounts until it has paid its
applicable limit of insurance or none of the loss remains,
whichever comes first.
(c) If any other insurance does not permit contribution by equal
shares, we will contribute by limits. Under this method,
each insurer's share is based on the ratio of its applicable
limit of insurance to the total applicable limits of
insurance of all primary insurers.
I. RIGHT OF ACCESS AND INSPECTION - Any of the Company's authorized
representatives shall have the right and opportunity but not the obligation when
the Company so desires to interview persons employed by the INSURED end to
inspect at any reasonable time, during the POLICY PERIOD or thereafter, an
INSURED PROPERTY for which the INSURED holds title, and applicable records for
COMMERCIAL REAL ESTATE LOANS. Neither the Company nor its representatives shall
assume any responsibility or duty to the INSURED or to any other party, person
or entity, by reason of such right of inspection. Neither the Company's right to
make inspections, sample and monitor nor the actual undertaking thereof nor any
report thereon shall constitute an undertaking on behalf of the INSURED or
others, to determine or warrant that property or operations are safe, healthful
or conform to acceptable engineering practices or are in compliance with any
law, rule or regulation. The INSURED agrees to provide appropriate personnel to
assist the Company's representatives during any inspection.
J. REPRESENTATIONS - By acceptance of this Policy, the first NAMED INSURED
agrees that the statements in the Declarations and Secured Creditor Impaired
Property Application are its agreements and representations, that this Policy is
issued in reliance upon the truth of such representations and that this Policy
embodies all agreements existing between any INSURED and the Company or any of
its agents relating to this insurance.
K. ACTION AGAINST COMPANY - No person or organization has a right under
this Policy:
1. to join the Company as a party or otherwise bring the Company
into a suit asking for damages from an INSURED; or
2. to sue the Company on this Policy unless all of its terms have
been fully complied with.
A person or organization may sue the Company to recover on an agreed
settlement or on a final judgment against an INSURED obtained after an actual
trial; but the Company will not be liable for damages that are not payable under
the terms of this Policy or that are in excess of the applicable limit of
liability. An agreed settlement means a settlement and release of liability
signed by the Company, the INSURED and the claimant or the claimant's legal
representative.
L. BANKRUPTCY - Bankruptcy or insolvency of the INSURED or of the INSURED'S
estate shall not relieve the Company of any of its obligations hereunder.
M. ARBITRATION - It is hereby understood and agreed that all disputes or
differences which may arise under or in connection with this Policy, whether
arising before or after termination of this Policy, including any determination
of the amount of LOSS, shall be submitted to the American Arbitration
Association under and in accordance with its then prevailing commercial
arbitration rules. The arbitrators shall be chosen in the manner and within the
time frames provided by such rules, if permitted under such rules, the
arbitrators shall be three disinterested individuals having knowledge of the
legal, corporate management, or insurance issues relevant to the matters in
dispute.
Any party may commence such arbitration proceeding and the arbitration
shall be conducted in New York, New York. The arbitrators shall give due
consideration to the general principles of New York law in the construction and
interpretation of the provisions of this Policy; provided, however, that the
terms, conditions, provisions and exclusions of this Policy are to be construed
in an evenhanded fashion as between the parties. Where the language of this
Policy is alleged to be ambiguous or otherwise unclear, the issue shall be
resolved in the manner most consistent with the relevant terms, conditions,
provisions or exclusions of the Policy (without regard to the authorship of the
language, the doctrine of reasonable expectation of the parties and without any
presumption or arbitrary interpretation or construction in favor of either party
or parties, and in accordance with the intent of the parties.)
The written decision of the arbitrators shall set forth its reasoning,
shall be provided simultaneously to both parties and shall be binding on them.
The arbitrators' award shall not include attorney fees or other costs. Judgment
on the award may be entered in any court of competent jurisdiction, each party
shall bear equally the expenses of the arbitration.
N. SERVICE OF SUIT - Subject to Paragraph M above, it is agreed that 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. Nothing in this
condition constitutes or should be understood to constitute a waiver of the
Company's rights to commence an action in any court of competent jurisdiction in
the United States, to remove an action to a United States District Court, or to
seek a transfer of a case to another court as permitted by the laws of the
United States or of any state in the United States. It is further agreed that
service of process in such suit may be made upon General Counsel, Legal
Department, American International Specialty Lines Insurance Company, 70 Pine
Street, New York, New York 10270, or his or her representative, and that in any
suit instituted against the Company upon this contract, the Company will abide
by the final decision of such court or of any appellate court in the event of
any appeal.
Further, pursuant to any statute of any state, territory, or district of
the United States which makes provision therefore, the Company hereby designates
the Superintendent, Commissioner, Director of Insurance, or other officer
specified for that purpose in the statute, or his or her successor or successors
in office 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 any beneficiary hereunder arising out of this contract of insurance,
and hereby designates the above named General Counsel as the person to whom the
said officer authorized to mail such process or a true copy thereof.
O. SOLD LOANS - In the event a COMMERCIAL REAL ESTATE LOAN(S) is sold by
the INSURED, the Company agrees to offer coverage to the new owner of the
COMMERCIAL REAL ESTATE LOAN(S) identical to coverage provided the INSURED under
this Policy. The per INSURED PROPERTY premium to be charged to the new owner of
the COMMERCIAL REAL ESTATE LOAN(S) will be equal to the pro rata premium
applying to an INSURED PROPERTY as of the date of sale plus not more than $100
per INSURED PROPERTY. Additional premium may be charged to the new owner of the
COMMERCIAL REAL ESTATE LOAN for negotiated differences in terms and conditions,
including but not limited to, POLICY PERIOD, limits of liability and deductible.
P. LENDER LIABILITY - The existence of any legal protection for the INSURED
against liability of any kind whatsoever in connection with POLLUTION
CONDITIONS, including but not limited to the secured creditor exemption in
Section 9601(2) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sec. 9601 et seq., shall in no way affect the rights of
the INSURED under this Policy. Any failure of the INSURED to qualify for such
protection shall not in and of itself trigger Exclusion IV.E or in any other way
affect the rights of the INSURED under this Policy.
IN WITNESS WHEREOF, the Company has caused this Policy to be signed by
its president and secretary and signed on the Declarations page by its duly
authorized representative or countersigned in states where applicable.
------------------------------ --------------------------------
SECRETARY PRESIDENT
EXHIBIT M
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Wells Fargo Bank Minnesota, N.A.
1031 10th Ave. S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS) - Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series 2001-1
Re: Amended and Restated Pooling and Servicing Agreement dated as
of June 1, 2001 (the "Agreement") among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A.
and Bridger Commercial Realty Finance LLC, as Mortgage Loan
Sellers, GMAC Commercial Mortgage Corporation, as Master
Servicer, Lennar Partners, Inc., 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 2001-1
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:
--------------------------
EXHIBIT N
FORM OF CMSA PROPERTY FILE
BACM 2001-1
PROPERTY FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
- ------------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
- ------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
- ------------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each S3, L3
Collateral Item In A Pool
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each S4, L4
Collateral Item In The Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
Cross-Collateralized Loan 6 AN Text All Loans With The Same Value Are Crossed, For S75
Grouping example : "X02-1" would be populated in this field
for all related loans, "X02-2" would be populated for
the next group of related loans.
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
# Of Units/Beds/Rooms At 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
Contribution
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5=
Released, 6= Same as at Contribution
Allocated Percentage of Loan 19 Numeric 0.75 Issuer to allocate loan % attributable to property
at Contribution for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by Issuer
or Underwriter, use Underwriting NOI or NCF to
calculate
Current Allocated Ending 21 Numeric 900900.00 Calculation based on Current Allocated Percentage and L7
Scheduled Loan Amount Current Ending Scheduled Principal Balance (L7) for
associated loan.
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No ground lease S74
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental. (Excludes S77
Tax & Insurance Escrows). An amount should be
printed if the value in Setup File field 77 is "Y"
Most Recent Appraisal Date 24 AN YYYYMMDD L74
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
Date Asset Expected to Be 26 AN YYYYMMDD Could be different dates for different properties. If L79
Resolved or Foreclosed in Foreclosure - Expected Date of Foreclosure and if
REO - Expected Sale Date.
Foreclosure Date 27 AN YYYYMMDD L42
REO Date 28 AN YYYYMMDD L43
Most Recent Physical Occupancy 29 Numeric 0.75 L71
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of the Rent Roll
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
% Sq. Feet expiring 13-24 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
months
% Sq. Feet expiring 25-36 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
months
% Sq. Feet expiring 37-48 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
months
% Sq. Feet expiring 49-60 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
months
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 2nd Largest 40 Numeric 15000
Tenant
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 3rd Largest 42 Numeric 15000
Tenant
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example : "12"
Contribution Financials As Of 44 AN YYYYMMDD S72
Date
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the S70
Property Level
Operating Expenses At 46 Numeric 1000000.00 Should match the prospectus if available. At the S71
Contribution Property Level
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the S65
Property Level
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
Appraisal Date At Contribution 50 AN YYYYMMDD S68
Physical Occupancy At 51 Numeric 0.9 S69
Contribution
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year 53 AN YYYYMMDD L58
Financial As of Date
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year 55 Numeric 1000000.00 L53
Operating Expenses
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt 57 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L55
Service Amount amount for each property
Preceding Fiscal Year DSCR 58 Numeric 1.3 Uses the property NOI and the allocated debt service L56
(NOI) amount
Preceding Fiscal Year Physical 59 Numeric 0.9 L57
Occupancy
Second Preceding FY Financial 60 AN YYYYMMDD L65
As of Date
Second Preceding Fiscal Year 61 Numeric 1000000.00 L59
Revenue
Second Preceding FY Operating 62 Numeric 1000000.00 L60
Expenses
Second Preceding Fiscal Year 63 Numeric 1000000.00 L61
NOI
Second Preceding FY Debt 64 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L62
Service Amount amount for each property
Second Preceding Fiscal Year 65 Numeric 1.3 Uses the property NOI and the allocated debt service L63
DSCR (NOI) amount
Second Preceding FY Physical 66 Numeric 0.9 L64
Occupancy
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L69
amount for each property
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt service L70
amount
Most Recent Financial As of 73 AN YYYYMMDD Start date used to calculate Most Recent information L72
Start Date either YTD or trailing 12 months
Most Recent Financial As of 74 AN YYYYMMDD End date used to calculate Most Recent information L73
End Date either YTD or trailing 12 months
Most Recent Financial 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
Indicator
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match the S83
prospectus if available.
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate. S84
Should match the prospectus if available.
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to L92
Financial As of Date P53.
Preceding Fiscal Year DSCR 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio L93
(NCF) using NCF related to Financial As of Date P53.
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow related L94
to Financial As of Date P60.
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage L95
Ratio using Net Cash Flow related to Financial As of
Date P60.
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As of L96
Date P74.
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net L97
Cash Flow related to Financial As of Date P74.
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated L90
should be the same for each financial period. See
NOI/NCF Indicator Legend.
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
Oper Statmt Analysis Income 86 AN Text Used in the Operating Statement Analysis Report
Comments to compare the 2 preceding consecutive year end
periods. Variance greater than 15% + or -for EGI
between the 2 periods.
Oper Statmt AnalysisExpense 87 AN Text Used in the Operating Statement Analysis Report
Comments to compare the 2 preceding consecutive year end
periods. Variance greater than 15% + or - for Total
Operating Expenses between the 2 periods.
Oper Statmt Analysis Capital 88 AN Text Used in the Operating Statement Analysis Report to
Items Comments compare the 2 preceding consecutive year end
periods. Variance greater than 15% + or - for Total
Capital Items AND Variance greater than 10% +or -
for ANY DSCR between the 2 periods.
Oper Statmt Analysis Source of 89 AN Text Fill with "Operating Stmt" or "Tax Return" or
Fin Data "Other", for 3rd, 2nd and Preceding periods.
NOI Adjustment Wksht Income 90 AN Text Used in the NOI Adjustment Worksheet for the most
Comments recent Annual Financials
NOI Adjustment Wksht Expense 91 AN Text Used in the NOI Adjustment Worksheet for the most
Comments recent Annual Financials
NOI Adjustment Wksht Capital 92 AN Text Used in the NOI Adjustment Worksheet for the most
Items Comments recent Annual Financials
NOI Adjustment Wksht Source of 93 AN Text Fill with "Operating Stmt" or "Tax Return" or
Fin Data "Other", for the most recent Annual financial.
Preceding FY Sales per Square 94 Numeric 236.75 Applicable to Retail Properties only and should be reported
Foot based on annual financial records. (Required per Section 4.02
of PSA)
- ---------------------------------- ----------------------------------------------------------------------
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
- ---------------------------------- ----------------------------------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
RT Retail PSA Calculated using a definition given in the PSA
HC Health Care U/W Calculated using the underwriting method
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
EXHIBIT O
FORM OF CMSA FINANCIAL FILE
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
- ---------------------------------------------------------------------------------------------------
PROPERTY TYPE
-----------------------------------------
CODE/ MULTI- HEALTH
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
- ---------------------------------------------------------------------------------------------------
INCOME
010GROSRNT Gross Potential Rent o o o
020VACANCY Less: o o o
Vacancy/Collection
Loss
030BASERNT Base Rent o o
040EXPREMB Expense Reimbursement o
050PCTRENT Percentage Rent o
060ROOMREV Room Revenue o
070FOODBEV Food & Beverage o
Revenues
080PHONE Telephone Revenue o
090OTHDREV Other Departmental o
Revenue
100PVTPAY Private Pay o
110MEDCARE Medicare/Medicaid o
120NURSING Nursing/Medical o
Income
130MEALS Meals Income o
140LAUNDRY Laundry/Vending o
Income
150PARKING Parking Income o o
160OTHERIN Other Income o o o o
- ---------------------------------------------------------------------------------------------------
EXPENSES 270ROOMS Room (Department) o
280FOODBEV Food & Beverage (Departmental) o
290PHONE Telephone Expenses o
(Departmental)
300OTHDEPT Other Dept. Expenses o
310RETAXES Real Estate Taxes o o o o
320PROPINS Property Insurance o o o o
330UTILITI Utilities o o o o
340REPAIRS Repairs and o o o o
Maintenance
350JANITOR Janitorial o
360FRANCHI Franchise Fee o
370MANAGEM Management Fees o o o o
380PAYROLL Payroll & Benefits o o o o
390MARKETI Advertising & o o o o
Marketing
400PROFESS Professional Fees o o o o
410GENERAL General and o o o o
Administrative
420ROOMS Room Expense - Housekeeping o
430MEALS Meal expense o
440OTHEREX Other Expenses o o o o
450GROUNDR Ground Rent o o o o
- ---------------------------------------------------------------------------------------------------
RESRV 490LEASING Leasing Commissions o
& CAPEX
500TENANTI Tenant Improvements o
510CAPEX Capital Expenditures o o o o
520EXCAPEX Extraordinary o o o o
Capital Expenditures
--------------------------------------------------------------------------
DATA TYPES
--------------------------------------------------------------------------
YTD Current Year - Year to Date
AN Annual (prior 12 months' data...fiscal year - audited)
TR Trailing 12 months' data
UB Underwriting Base Line
--------------------------------------------------------------------------
--------------------------------------------------------------------------
STATEMENT TYPES
--------------------------------------------------------------------------
BOR Borrower's Statement (as submitted)
ADJ Adjustments to Borrower's Statement
NOR Normalized Statement (to CMSA format)
--------------------------------------------------------------------------
EXHIBIT P
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
ATTACHMENT B:
FINANCIAL FILE
SPECIFICATIONS
- --------------------------------------------------------------------------------
RECORD LAYOUT
- --------------------------------------------------------------------------------
Fields: Trans ID From CMSA Loan Setup
File, Field #1
Loan # From CMSA Property
File, Field #2
Property ID From CMSA Property File, Field #4, Example:
1001-001
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99 Enter positive values except
for adjustments, contra accounts or other negative
numbers.
Key: Trans ID
Loan #
Property ID CMSA Property File, P4
YYYYMM Financial Statement Ending Date
Data Type
Statement Type
Category Code
- --------------------------------------------------------------------------------
SAMPLE ASCII PRESENTATION
(PREFERRED)
- --------------------------------------------------------------------------------
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,1001-001,199901,199903,YTD,NOR,510CAPEX,999999.99
- --------------------------------------------------------------------------------
SAMPLE SPREADSHEET
PRESENTATION
- ---------------------------------------------------------------------------------------
Prop BEGIN ENDING DATA STMT
TRANS ID LOAN NO. ID YYYYMM YYYYMM TYPE TYPE CATEGORY AMOUNT
- ---------------------------------------------------------------------------------------
XX97D4 12768-34 1001- 199901 199903 YTD NOR 010GROSR 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 020VACAN 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 030BASER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 160OTHER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 310RETAX 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 320PROPI 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 330UTILI 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 340REPAI 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 350JANIT 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 370MANAG 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 380PAYRO 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 390MARKE 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 410GENER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 440OTHER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 500TENAN 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 510CAPEX 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 010GROSR 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 020VACAN 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 030BASER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 160OTHER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 310RETAX 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 320PROPI 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 330UTILI 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 340REPAI 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 350JANIT 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 370MANAG 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 380PAYRO 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 390MARKE 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 410GENER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 440OTHER 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 500TENAN 1000000
XX97D4 12768-34 1001- 199901 199903 YTD NOR 510CAPEX 1000000
Pro-sup # followed by
the Prop. Seq. #
Vacancy amounts must be
entered with a negative sign
EXHIBIT Q
FORM OF LOAN PERIODIC UPDATE FILE
EXHIBIT 1
BACM 2001-1
LOAN PERIODIC FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
- ------------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
- ------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each Collateral
Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each Collateral
Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of current
Balance period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current period that
is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency < the date the
loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Subservicer Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate The
Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next Period
Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc Of The
Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period that goes to the trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current Period
that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For Current
Period for the trust
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For
The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To Prepayment
Rec'd Of Loan Prior To Maturity
Prepayment Interest Excess 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by Servicer
(Shortfall) per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction - The
difference between a full advance and the reduced advance
is the ASER or as defined in the Trust documents
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most Recent
ASER Date. Field not considered applicable to ASER.)
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement Reduction
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of The
Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date then
print that date otherwise leave empty
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same date then
print that date otherwise leave empty
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted to the
Liquidation Trust per the Trust Documents
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted from the
Trust per the Trust Documents
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received (as defined in Trust documents)
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Operating 53 Numeric 1000.00 P55 - If Multiple properties then sum the value, if
Expenses missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year Debt Svc 55 Numeric 1000.00 P57 - If Multiple properties then sum the value, if
Amount missing any then populate using the "DSCR Indicator
Legend" rule
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Preceding Fiscal Yr Debt Svc
Cvrge Ratio using NOI
Preceding Fiscal Year Physical 57 Numeric 0.85 P59 - If Multiple properties, Use weighted average by
Occupancy using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any then
leave empty
Preceding Fiscal Year Financial 58 AN YYYYMMDD P53 - If Multiple properties and all the same then print
As of Date the date, if missing any then leave empty
Second Preceding Fiscal Year 59 Numeric 1000.00 P61 - If Multiple properties then sum the value, if
Revenue missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year 60 Numeric 1000.00 P62 - If Multiple properties then sum the value, if
Operating Expenses missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year 62 Numeric 1000.00 P64 - If Multiple properties then sum the value, if
Debt Service Amount missing any then populate using the "DSCR Indicator
Legend" rule
Second Preceding Fiscal Year 63 Numeric 2.55 P65 - If Multiple properties populate using the "DSCR
DSCR (NOI) Indicator Legend" rule. Second Preceding Fiscal Year
Debt Service Coverage Ratio using NOI
Second Preceding Fiscal Year 64 Numeric 0.85 P66 - If Multiple properties, Use weighted average by
Physical Occupancy using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any then
leave empty
Second Preceding Fiscal Year 65 AN YYYYMMDD P60 - If Multiple properties and all the same then print
Financial As of Date the date, if missing any then leave empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Most Recent Debt Service
Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted average by
using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing any then
leave empty
Most Recent Financial As of 72 AN YYYYMMDD P73 - If Multiple properties and all the same then print
Start Date the date, if missing any then leave empty
Most Recent Financial As of End 73 AN YYYYMMDD P74 - If Multiple properties and all the same then print
Date the date, if missing any then leave empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same then print
the date, if missing any then leave empty
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the value, if
missing any then leave empty
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Special Servicer 77 AN YYYYMMDD Date Transferred To The Special Servicer
Transfer Date
Most Recent Master Servicer 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary Servicer
Return Date
Date Asset Expected to Be 79 AN YYYYMMDD P26 - If Multiple properties then print the latest date
Resolved or Foreclosed from the affiliated properties. If in Foreclosure -
Expected Date of Foreclosure and if REO - Expected Sale
Date.
Blank 80 AN Blank Left blank on purpose. (Note : was previously Year
Renovated. Use the Property File field 15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date will be
the same as setup file unless the loan is modified and a
new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date, Check Start
& End Date Applies to field L66 to L73. If Multiple
properties and all the same then print the value, if
missing any or if the values are not the same, then leave
empty
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information changed last in
the setup file by loan
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties were
contributed. For Multiple properties print the latest
date from the affiliated properties
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying the Mortgage
Loan
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Second Preceding Year DSCR 88 AN Text Flag used to explain how the DSCR was calculated when
Indicator there are multiple properties. See DSCR Indicator
Legend.
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated should
be the same for each financial period. See NOI/NCF
Indicator Legend. P84 - If Multiple Properties and all the
same then print value, if missing any or if the values are
not the same, then leave empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower- empty if
never assumed
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow related to
Financial As of Date L58. If Multiple properties then sum
the value, if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date L58. If
Multiple properties populate using the "DSCR Indicator
Legend" rule.
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash Flow related
to Financial As of Date L65. If Multiple properties then
sum the value, if missing any then populate using the
"DSCR Indicator Legend" rule
Second Preceding Fiscal Year 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service Coverage
DSCR (NCF) Ratio using Net Cash Flow related to Financial As of Date
L65. If Multiple properties populate using the "DSCR
Indicator Legend" rule.
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to Financial As of
Ending Date L73. If Multiple properties then sum the
value, if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of Ending Date L73. If
Multiple properties populate using the "DSCR Indicator
Legend" rule.
Defeasance Status 98 AN Text See Defeasance Status Legend
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the principal
balance over the defined appraisal % or as defined in the
trust documents
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
Actual Payment Date 102 AN YYYYMMDD Actual Date Borrower made payment
Actual Principal Payment 103 Numeric 1000.00 Gross Principal Payment Amount posted to the Borrowers
Loan during the Current Rptg Period
Actual Interest Payment 104 Numeric 1000.00 Gross Interest Payment Amount posted to the Borrowers
Loan during the Current Rptg Period
Delinquent Loan Comments 105 AN Text Used in the Delinquent Loan Status Report
Watchlist Codes 106 AN Text Used in Watchlist Report, Codes developed by Servicer in
conjunction with PSA
Watchlist Comments 107 AN Text Used in Watchlist Report further describing the cause
for addition to the report and action to cure.
Excess Rate 108 Numeric 0.09 Incremental increase in the Mortgage Rate for such
Mortgage Loan resulting from the Anticipated Repayment
Date. (Post ARD Additional Interest Rate)
Excess Amount 109 Numeric 100000.00 All interest accrued on the Principal balance of such
ARD Loan at the Post ARD Additional Interest Rate
Default Interest Rate 110 Numeric 0.09 Rate charged to derive Default Interest Amount
Default Interest Amount 111 Numeric 0.09 Default Interest Amount collected from Borrower
Late Payment Fees 112 Numeric 100000.00 Late Charges collected from Borrower
- ------------------------------------------- ----------------------------------------------------------------------
WORKOUT CODE STATUS OF MORTGAGE LOAN
STRATEGY LEGEND LEGEND
- ------------------------------------------- ----------------------------------------------------------------------
1 Modification A Payment Not Received But Still In Grace Period
2 Foreclosure B Late Payment But Less Than 30 days Delinquent
3 Bankruptcy 0 Current
4 Extension 1 30-59 Days Delinquent
5 Note Sale 2 60-89 Days Delinquent
6 DPO 3 90+ Days Delinquent
7 REO 4 Assumed Scheduled Payment (Performing Matured Balloon)
8 Resolved 7 Foreclosure
9 Pending Return to 9 REO
Master Servicer
10 Deed In Lieu Of Foreclosure
11 Full Payoff
12 Reps and Warranties
13 Other or TBD
BACM 2001-1
LOAN PERIODIC FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
- ------------------------------------------- ----------------------------------------------------------------------
LIQUIDATION/PREPAYMENT CODE MODIFICATION CODE
LEGEND LEGEND
- ------------------------------------------- ----------------------------------------------------------------------
1 Partial Liq'n (Curtailment) 1 Maturity Date Extension
2 Payoff Prior to Maturity 2 Amortization Change
3 Disposition 3 Principal Write-Off
4 Repurchase/Substitution 4 Combination
5 Full Payoff At Maturity
---------------------------------------------------------------------
6 DPO DSCR INDICATOR LEGEND
---------------------------------------------------------------------
7 Liquidation
8 Payoff w/ penalty P Partial - Not all properties received financials,
servicer to leave empty
9 Payoff w/ Yield Maintenance A Average - Not all properties received financials, servicer
allocates Debt Service only to properties where financials
are received.
10 Curtailment w/ Penalty F Full - All Statements Collected for all properties
11 Curtailment w/ Yield Maintenance W Worst Case - Not all properties received financials,
servicer allocates 100% of Debt Service to all properties
where financials are received.
N None Collected - no financials were received
C Consolidated - All properties reported on one "rolled
up" financial from the borrower
- ------------------------------------------- ----------------------------------------------------------------------
DEFEASANCE STATUS NOI/NCF INDICATOR
LEGEND LEGEND
- ------------------------------------------- ----------------------------------------------------------------------
P Partial Defeasance
F Full Defeasance
N No Defeasance Occurred CMSA Calculated using CMSA standard
X Defeasance Not Allowable PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
BACM 2001-1
LOAN PERIODIC FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
-----------------------------------------------------------------------------------
(DEVELOPED WATCHLIST CODES
BY CONTRACT) LEGEND
PENDING FINALIZATION OF THE PSA
EXHIBIT R
FORM OF HISTORICAL MODIFICATION REPORT
EXHIBIT S
FORM OF HISTORICAL LIQUIDATION REPORT
EXHIBIT T
FORM OF CMSA LOAN SET UP FILE
BACM 2001-1
LOAN SETUP FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
- ------------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
- ------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the
format of LO(36), YM(28), 7(12), O(3). If manually
derived, the Cutoff Date should be the start date for
period counting.
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The
Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan
Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per
The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per
The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment
Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually
365=Daily
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually,
365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See
Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed 38 AN Y Y=Yes, N=No
(Y/N)
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance
Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original Balance
Allowed Per The Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At
Cutoff
Remaining Amort Term At 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At
Contribution Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Contribution
Scheduled Principal Balance At 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan
Contribution At Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To
The Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Subservicer Fee Rate / Strip 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Rate 2 Note Rate = Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
Periodic P&I Payment At 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at
Contribution Contribution
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The Mortgage
Loan
Property Name 55 AN Text P7 - If Multiple properties print "Various"
Property Address 56 AN Text P8 - If Multiple properties print "Various"
Property City 57 AN Text P9 - If Multiple properties have the same city then
print the city, otherwise print "Various". Missing
information print "Incomplete"
Property State 58 AN Text P10 - If Multiple properties have the same state then
print the state, otherwise print "XX" to represent
various. Missing information print "ZZ"
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code
then print the zip code, otherwise print "Various".
Missing information print "Incomplete"
Property County 60 AN Text P12 - If Multiple properties have the same county then
print the county, otherwise print "Various". Missing
information print "Incomplete"
Property Type Code 61 AN MF P13 - If Multiple properties have the same property
type code then print the property code, otherwise
print "XX" to represent various. Missing information
print "ZZ"
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same
Property Type, sum the values, if missing any leave
empty
# Of Units/Beds/Rooms At 63 Numeric 75 P17 - For Multiple properties, if all the same
Contribution Property Type, sum the values, if missing any leave
empty
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year Built
then print Year Built else leave empty
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using
NOI. Should match the prospectus if available.
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values , if
missing any then leave empty
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then
print the date, if missing any then leave empty
Physical Occupancy At 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by
Contribution using the calculation [ Current Allocated % (Prop) *
Occupancy (Oper) ] for each Property, if missing one
then leave empty
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
Operating Expenses At 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if
Contribution missing any then populate using the "DSCR Indicator
Legend" rule. Should match the prospectus if
available.
Contribution Financials As Of 72 AN YYYYMMDD P44 - If Multiple properties and all the same then
Date print the date, if missing any then leave empty
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 - If
Multiple properties and any one property is "Y" or "S"
print "Y"
Cross-Collateralized Loan 75 AN Text P6 - All Loans With The Same Value Are Crossed, For
Grouping example : "X02-1" would be populated in this field for
all related loans, "X02-2" would be populated for the
next group of related loans.
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
Collection Of Other Reserves 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes
(Y/N) and Insurance. If any property has a value > 0 in
P23, this field should be "Y"
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date
Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was last
changed by loan
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Net Cash Flow At Contribution. Should
match the prospectus if available.
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. DSCR At Contribution using NCF
to calculate. Should match the prospectus if
available.
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated when
there are multiple properties. See DSCR Indicator
Legend.
Loan Contributor to 86 AN Text Name of entity ultimately responsible for the reps and
Securitization warranties of the loan contributed
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
BACM 2001-1
LOAN SETUP FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
- -----------------------------------------------------------------------------------------------------------------
ROUNDING CODE ARM INDEX CODE
LEGEND LEGEND
- -----------------------------------------------------------------------------------------------------------------
1 Unrounded A 11 FHLB COFI (1 Month)
2 Nearest Percentage Increment B 11 FHLB COFI (6 Month)
3 Up to Nearest Percentage Increment C 1 Year CMT Weekly Average Treasury
4 Down to Nearest Percentage Increment D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
- ---------------------------------------------------
PROPERTY TYPES CODE G 1 Month LIBOR
LEGEND
- --------------------------------------------------- H 3 Month LIBOR
MF Multifamily I 6 Month LIBOR
RT Retail J National Mortgage Index Rate
All Others Use Short Text Description
HC Health Care
----------------------------------------------------------------------
IN Industrial PAYMENT TYPE CODE LEGEND
----------------------------------------------------------------------
WH Warehouse
1 Fully Amortizing
MH Mobile Home Park
2 Amortizing Balloon
OF Office
3 Interest Only / Balloon
MU Mixed Use
4 Interest Only / Amortizing
LO Lodging
5 Interest Only / Amortizing / Balloon
SS Self Storage
6 Principal Only
OT Other
7 Hyper-Amortization
SE Securities
9 Other
----------------------------------------------------------------------
DSCR INDICATOR
LEGEND
----------------------------------------------------------------------
P Partial - Not all properties received financials,
servicer to leave empty
A Average - Not all properties received financials,
servicer allocates Debt Service only to properties where
financials are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials,
servicer allocates 100% of Debt Service to all
properties where financials are received.
N None Collected - no financials were received
C Consolidated-All properties reported on 1 "rolled up"
financial from the borrower
----------------------------------------------------------------------
EXHIBIT U
FORM OF DELINQUENT LOAN STATUS REPORT
EXHIBIT
3
SUB-SERVICER COLLECTION ACCOUNT
RECONCILIATION
BACM
2001-1
FROM MM/DD/YYYY TO AND INCLUDING Account #
MM/DD/YYYY
BEGINNING BALANCE $0.00
---------
Collections:
DELINQUENT $0.00
PAYMENT
PAYMENTS FOR CURRENT DUE $0.00
PERIODS
(Includes net liquidation $0.00
proceeds & prepayments)
PAYMENTS FOR FUTURE DUE $0.00
PERIODS
OTHER: $0.00
ESCROW $0.00
SUBSERVICER $0.00
ADVANCES
LIQUIDATION PROCEEDS- To be applied to $0.00
Servicer Advances
LATE FEES $0.00
PREPAYMENT $0.00
PREMIUMS
EXCESS INTEREST $0.00
DEFAULT INTEREST $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME-Due to $0.00
Subservicer
-------
$0.00
=========
TOTAL
COLLECTIONS
DISBURSEMENTS:
- ------------------
TRANSFER TO $0.00
ESCROW
TRANSFER TO RESERVE $0.00
ACCOUNT
SUBSERVICER FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE $0.00
REIMBURSEMENTS
INTEREST ADVANCE $0.00
REIMBURSEMENTS
SERVICER ADVANCE $0.00
REIMBURSEMENTS
ADVANCE INTEREST (Due and $0.00
collected)
OTHER SERVICER $0.00
INCOME
INVESTMENT INCOME-Due $0.00
Subservicer
-------
TOTAL $0.00
DISBURSEMENTS
=========
ENDING BALANCE $0.00
BALANCE PER BANK STATEMENT $0.00
---------
DIFFERENCE $0.00
=========
EXPLANATION OF DIFFERENCE:
Report should be supported by
copy of bank statement
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Loan
Sequence Number Property Name Property Address
- -------- ------ ------------- ----------------
A1 51084 Ballantyne Commons East 15007 John J. Delaney Dr.
A2 52597 Marlboro Village Center Old Marlboro Pike and Brown Station Road
A3 52466 Frankford Pavilion Shopping Center 4520 Frankford Rd, 18149 Dallas Pkwy, and 18111 Dallas Pkwy
A4 53343 Aiea Shopping Center 99-115 Aiea Heights Road
A5 54536 Arabi Shopping Center - Winn Dixie #1434 7400 West Judge Perez Drive
A6 51020 Premier Plaza Shopping Center 1301-1321 W Government Road
A7 51674 Shady Grove Shopping Center 2200 West Shady Grove Road
A8 53894 Merchants Row Mall 2061-2071 Washington Street (Route 53)
A9 54141 Sav-On Drug Store No. 96BT 702-704 North Azusa Avenue
A10 54473 Crowfield Plaza Shopping Center 971 Crowfield Blvd
A11 51935 Park Plaza Shopping Center 789 Hebron Road
A12 52506 Minyard's Property 11445 Garland Road
A13 53965 Spring Park Shopping Center 19770 North Freeway
B1 303000144 Southpoint Shopping Center 7900 Florin Road
B2 318000251 Kingston Pike 7212 Kingston Pike
B3 308000248 Quality Stores Inc - Battle Creek, MI 6360 B Drive North
A14 54297 Sam's Club - Yuma AZ 1800 East Palo Verde Street
A15 54134 Holland Boone Shopping Center 15030 North Tatum Blvd.
B4 306000170 Mangrove Square 1722 Mangrove Avenue
A16 54322 Vintage Plaza 3424 & 3416 Dale Road, and 2936 Veneman Avenue
B5 302000146 Pico Boulevard 8771 W Pico Boulevard
B6 275000145 Rite Aid, Highland Falls 188 Main Street
A17 600012 38-40 Colorado Blvd. 38-40 East Colorado Blvd.
A18 53623 CVS - Trenton, TN 2058 US Highway 45 Bypass South
B7 415000207 Diamond Bar Plaza 1195 South Diamond Bar Boulevard
A19 51958 Fashion Bug/ Wonder Bread 2605 East Main Street
A20 51981 The Fur Plaza 4830-4848 Sunrise Highway
A21 51984 Freeway VIII Center 20007 44th Avenue West
A22 51979 Broadway Shoppette 5553-5555 S. Broadway
A23 51987 Prime Commercial Partners-Burley Honk's 99 Cent 645 North Overland Avenue
A24 54816 RCA - Royal St. Moritz Apartments 2050 Grayson Drive
A25 54781 Keswick Village Apartments 2811 Keswick Village Court
B8 100000268 Forest Park Apartments 580 Dewdrop Circle
A26 54813 RCA - Regency Arms 6363 San Felipe Road
A27.1 53169 Columbia Apartment Portfolio-Gatehouse Apts. 2401 West Broadway
A27.2 53169 Columbia Apartment Portfolio-Holiday House Apts. 109 N. Stadium Boulevard
A27.3 53169 Columbia Apartment Portfolio-Tiger Village Apts. 301 Tiger Lane
A27 53169 COLUMBIA APARTMENT PORTFOLIO (ROLL-UP)
A28 53411 Colonial Pines Apartments 550 Bilper Avenue
B9 400000262 Lake Jasmine Apartments 1182 Redman Street
A29 54503 Gough & Fell Apartments 300 Gough Street and 280 Fell Street
A30 53414 Eastampton Gardens Apartments A1 Bentley Road
A31 54812 RCA - Lexington Apartments 2620 LeJuene Drive
A32 54814 RCA - Royal Pheonician Apartments 16900 Northchase Drive
A33 53406 Cedar Gardens Apartments 3701 North Rolling Road
A34 53410 Colonial Apartments 836 Cooper Landing Road
A35 53247 Fountain Court Apartments 15415 35th Ave. West
A36 54277 Quarterfield Crossing Apartments 400 - 442 Pamela Road
B10 820000196 Vernon Stables 305-327 East Vernon Drive
A37 53412 Country Village Apartments 453 Country Drive
B11 800000218 Whipple Creek Apartments 2019 NE 179th Street
B12 302000148 Lake Meridian Apartments 14901 S E 272nd Street
B13 415000222 Bascom Square Apartments 222 North Muller Street
A38 53079 Colony Apartments 2206 Whitegate Drive
A39 53407 Cedar Towers Apartments 3701 Twin Lakes Court
A40 54625 Lake Park Tower Apartments 13855 Superior Road
A41 54226 Westport Commons Apartments 1545 Spruce Terrace
A42 53509 Goose Creek Apartments 2 Goose Creek Drive
B14 415000242 La Quinta Springs Apartments 46896 Jefferson Street
B15 415000195 Westbay Apartments 2000 Parson Street
A43 51944 Woodland Apartments I & II 2909 Burroughs Drive #7
A44 51955 Cherry Glen Apartments I & II 2752 Cherry Glen Way
A45 51973 Desertbrook Apartments 3703 West Kennewick Avenue
B16 400000201 Autumn Wood Apartments 3015B Autumn Wood Drive
A46 54029 Westwood Apartments 4834 East Gettysburg Avenue
B17 400000228 Carson Crest Apartments 1401 Carson Road
A47 54109 Sandalwood Apartments 5070 E. Ashlan Ave.
A48 51945 Sky Pines Apartments 4990 North Lane # 902
A49 54448 Vogue Apartments 3585-3595 Central Avenue
A50 51950 King's Colony Apartments 1425 King George Blvd.
A51 51977 Arda Jean Apartments 2860 & 2862 South 200 East Street
A52 51954 Cedarwood Apartments I & II 1306 Cedarbrook Drive
A53 54449 French Quarter 6400 North Armenia Avenue
B18 302000163 The Sierras 7158 Winton Way
B19 245990128 Cedarwood Apartments 2411 Cedarwood Avenue
A54 51956 Sherbrook Apartments 8026 McFarland Court
A55 51953 Harvest Grove Apartments 5239 Harvestwood Lane
A56 51952 Woodlands Apartments of Columbus II 5354 Deerbrook Lane
A57 51957 Elmtree Park Apartments 11023 Elmtree Park Dr
A58 51943 Elmwood Apartments II 5111 Elmhurst Road #3
A59 51949 Sunnyside Apartments 909 West 20th Street
A60 54321 Parkside I & II 951 SW 11th Street and 1020 SW Depot Avenue
B20 410990032 President & Bel Air Apts. 523-529 West Chelten Avenue
A61 51948 Pine Knoll Apartments of Clayton County 7393 Tara Road
B21.1 820000210 Willedrob Apartments 2 Willedrob
B21.2 820000210 Hershey Apartments 1104 Hershey Street
B21 820000210 HERSHEY & WILLEDROB APTS. (ROLL-UP)
B22 440000198 Baycrest Apartments 2707-2709 Wildwood Circle & 2714-2718 Arlington Avenue
A62 51933 Courtright Lane Apartments 2269 Courtright Road
A63 51951 Laurel Court Apartments 125 St. Paul Drive
B23 410990031 Morris Manor Apts. 5721-45 Morris Street
A64 51942 Clearlake Pines Apartments II 2600 Clearlake Road #15A
A65 51946 Deerwood Apartments 611 Mt. Homer Road
B24 410990033 Chelten Arms Apartments 500-502 West Chelten Avenue
A66 51989 Parkside Manor Apartments 800-820 Montie Road
A67 53630 Westwood Heights Apartments 445 SW 27th Avenue
A68 51982 Lantern Arms Apartments 848 Riverview Terrace
A69 51947 Brandywyne Apartments East 418 19th Street, SE
A70 51986 Windmill Courts Apartments Clark Street
A71 54059 315 Park Avenue 315 Park Avenue South
A72 54656 701 Gateway Office Building 701 Gateway Boulevard
A73 53531 One Lake Park Office Building 2140 Lake Park Boulevard
A74 53967 PCS Holdings Corp Office Building 9501 E. Shea Boulevard
A75 53879 Talley Plaza 2702, 2800, 2828 North 44th Street
A76 54748 Northwest-Hidden Valley 1750 112th Avenue, NE
B25 260000223 Calverton Office Building #5 11785 Beltsville Drive
A77 54664 Freeport Office Center IV 3660 Regent Boulevard
B26 312000213 Stealth II 501 Technology Drive
B27 800000214 Willows Corporate Center 11261 Willows Road
A78 54742 Northwest-Plaza West 9600 SW Oak Street
A79 52141 Tech Center Plaza 2901, 2911, 2921 and 2931 North Tenya Way
A80 54745 Northwest-Cascade Building 520 SW Sixth Avenue
A81 54606 Severn Place Office Building 2450 Severn Avenue
A82 54746 Northwest-Spalding Building 319 SW Washington Street
B28 304000155 800 California Street 800 California Street
A83 51225 2815 Camino Del Rio Building 2815 Camino Del Rio South
B29 800000173 Westside Center 33301-33309 1st Avenue South
A84 54739 Northwest-Beaverton Center 14155-14255 SW Brigadoon Court
B30 310000202 High Street Office 849 High Street
B31 240000220 Acacia Court 20250 Acacia Street
B32.1 100000215 Prudential Office Building 8 Lafayette Place
B32.2 100000215 Carswell Office Building 1 Park Lane
B32.3 100000215 Stoneworks Showroom 28 Hunter Road
B32 100000215 PRUDENTIAL, STONEWORKS & CARSWELL BUILDINGS (ROLL-UP)
A85 53749 Caledon Woods Professional Park Bldgs 3 & 11 3 & 11 Caledon Court
B33 290990122 Pyramid Plaza 7434 Louis Pasteur Drive
B34 275990124 Dickinson Square 1500 S. Christopher Columbus Boulevard
B35 311000208 Enterprise Court 41715, 41743 and 41769 Enterprise Circle
B36 240000187 North Broadway Office 2333 North Broadway
A86 51941 Real Property Services Office Building 818 W. Brooks Avenue
A87 52387 Magna Post Office 8470 West 2700 South
B37 400000275 Soaring Gulls Office Building 3200 Soaring Gulls Drive
B38 415000188 Glendale Office 815 - 819 E. Colorado Street
B39 309000203 Patrick Professional Plaza 3950 - 3960 East Patrick Lane
B40 815000171 API Facility 6620 Lakeside Road
A88 600055 Prospect Office Building 857 Tenacity Drive
A89 51978 Renaissance Plaza 1644-1684 SW Willamette Falls
A90 51990 Lakemont Office Bldg. 11901 W. 48th Ave.
A91 54674 Historic Mission Inn 3649 Mission Inn Avenue
A92 52533 Marriott Courtyard - Embassy Row 1600 Rhode Island Ave, NW
A93 51872 Comfort Suites-BWI Airport 815 Elkridge Landing Road
B41 820000190 Waretech Industrial Park 3085 Reid Road
A94 54221 Eagle One Distribution Warehouse 105 Eagle Vista Parkway
A95 54222 Eagle Two Distribution Warehouse 100 Eagle Vista Parkway
A96.1 53806 Ball Plastics Warehouse 2900 McLane Drive
A96.2 53806 Motts Warehouse 200 Dunn Road
A96 53806 BALL PLASTICS/MOTTS WAREHOUSE-SUMMARY (ROLL-UP)
B42 308000246 Quality Distribution Center 130 West Jones Road
B43 100000225 Industrial Park South 1160 and 1234 Palmour Drive
B44 415000152 Center Pointe Business Park 1280, 1300, 1400 North Johnson Avenue
B45 240000204 ABI Distribution Center 4701 West Pointe Boulevard
B46 400000169 Airport Commerce Center 11840, 11860, 11904-11954 La Cienega Blvd.
A97 54740 Northwest-Vancouver Business Park 3315 NE 112th Avenue
B47 311000219 Buchanan Visual Communications 12400 Ford Road
A98 54055 Keystone Industrial Park 2558 Pearl Buck Road
B48 315000232 Canoga Avenue Industrial 9667 Canoga Avenue
B49 430990121 Electric Machinery Enterprises 2515 East Hanna Avenue
B50 430000217 Balboa Boulevard Building 9944 Balboa Avenue
A99 54700 EDS Customer Relationship Management Inc. Building 300 10th Street
A100 53675 Nation's Capital Archives 14811 Farm Creek Drive
B51 275000160 McNulty Road 12285 McNulty Road
B52 400000141 Premier Distribution 4013 Premier Avenue
A101 53529 Hackensack Industrial 100 Commerce Way
B53 415000192 Morally Wholesale Design Center 456 East Mission Road
B54.1 430990126 Bee Street Office Warehouse Building 13777 Bee Street
B54.2 430990126 Grissom Lane Office Warehouse Building 11038 Grissom Lane
B54 430990126 GRISSOM-BEE STREET WAREHOUSES (ROLL-UP)
A102 51980 Southtown Blvd. Commercial Building 1881 Southtown Blvd.
A103 51983 ImageMax Warehouse 1040 Wabash Avenue
B55 415000149 Saddleback Technology Park #2 26631 Cabot Road
B56 415990127 Saddleback Technology Park #1 26621 Cabot Road
B57 400000162 Suburban Acres-Rapid Estates 6763 Minnick Road, 6773 Rapids Road
B58 400000255 Indian Creek MHC 643 Indian Creek Road
B59 400000181 Hollywood MHP 7230 4th Street North
B60 400000229 Marlboro Courts MHP 4261 Hillary Circle
B61 400000267 Mariposa Manor MHC 945 W. Manor Drive
B62 400000183 Snug Harbor MHP 560 30th Avenue
B63 300980019 Kimberly Gardens MHP 24922 Muirlands Blvd.
B64 400000186 Country Homes Village MHP FM 741/Towns Road
B65 400990118 Sunrise MHP 3900 Lenore Drive
B66 400000231 Holiday Rancho MHP 34184 County Line Road
B67 400000154 Country Hills Mobile Estates 11901 W McDowell Road
B68 400000233 Flinn Springs MHP 14595 Olde Highway 80
B69 415000221 Mountain View Villa MHC 21621 Sandia Avenue
A104 51985 Mountain View Mobile Home Park 3109 East Mulberry Street
B70 400000143 Keystone MHP 303 Gordy Road
A105 53552 A-1 Self Storage 2900 Monterey Road
B71 302000168 Alum Rock Self Storage 2487 Alum Rock Avenue
B72 415990105 Vanguard Self Storage 325 Trousdale Drive
A106 52336 Downtown Mini Storage 1050 West Washington Blvd.
B73 302000206 Torrance Self Storage 2515 Maricopa Street
A107 51937 Capitol Mini-Storage #2 410 58th Street
A108 51938 South Charleston Mini-Storage 4126-4200 Kanawha Turnpike
SUB-TOTAL CROSSED LOANS
A109 51974 Seattle Mini Storage 1100 Poplar Place South
A110 53127 Elliot & Price Mini Storage 2880 W. Elliot Road
B74 440000205 Intermountain Self Storage 3960 2nd Avenue
B75 295000135 US Storage Centers, Newport 1652 Newport Blvd.
- ------------------------------------------------------------------------------------------------------------------------------------
TOTALS 185 LOANS
====================================================================================================================================
MORTGAGE LOAN SCHEDULE
Cut-off
Date
Sequence County City State Zip Property Type Original Balance Balance
- -------- ------ ---- ----- --- ------------- ---------------- -------
A1 Mecklenburg Charlotte NC 28277 Retail $14,750,000 14552572.31
A2 Prince Georges Upper Marlboro MD 20772 Retail 10,400,000 10385641.26
A3 Dallas Dallas TX 75287 Retail 7,012,500 6975304.53
A4 Honolulu Aiea HI 96701 Retail 6,068,066 5977522.47
A5 St. Bernard Parish Arabi LA 70032 Retail 5,550,000 5538242.49
A6 Rankin Brandon MS 39042 Retail 5,544,000 5462232.00
A7 Dallas Irving TX 75060 Retail 5,200,000 5173055.18
A8 Plymouth Hanover MA 2339 Retail 4,195,000 4183415.32
A9 Los Angeles West Covina CA 91791 Retail 3,600,000 3595505.48
A10 Berkeley Goose Creek SC 29202 Retail 3,160,000 3150511.98
A11 Licking Heath OH 43056 Retail 2,900,000 2813889.54
A12 Dallas Dallas TX 75218 Retail 2,610,000 2592605.92
A13 Harris Spring TX 77373 Retail 2,300,000 2291377.09
B1 Sacramento Sacramento CA 95828 Retail 2,250,000 2225558.97
B2 Knox Knoxville TN 37919 Retail 2,000,000 1994485.71
B3 Calhoun Battle Creek MI 49014 Retail 1,850,000 1835946.15
A14 Yuma Yuma AZ 85365 Retail 1,850,000 1834692.47
A15 Maricopa Phoenix AZ 85032 Retail 1,725,000 1722194.85
B4 Butte Chico CA 95926 Retail 1,500,000 1492602.81
A16 Stanislaus Modesto CA 95356 Retail 1,500,000 1489444.57
B5 Los Angeles Los Angeles CA 90035 Retail 1,307,000 1300273.25
B6 Orange Highland Falls NY 10928 Retail 1,225,000 1215585.35
A17 Los Angeles Pasadena CA 91105 Retail 1,120,000 1082732.93
A18 Gibson Trenton TN 38382 Retail 1,072,000 1068085.64
B7 Los Angeles Diamond Bar CA 91765 Retail 1,050,000 1045102.37
A19 Hendricks Plainfield IN 46168 Retail 1,025,000 1002516.72
A20 Suffolk Sayville NY 11782 Retail 750,000 732059.89
A21 Snohomish Lynnwood WA 98036 Retail 700,000 666112.49
A22 Arapahoe Littleton CO 80121 Retail 430,000 419814.29
A23 Minidoka Burley ID 83318 Retail 320,000 313896.89
A24 Tarrant Grapevine TX 76051 Multifamily 20,800,000 20800000.00
A25 Rockdale Conyers GA 30013 Multifamily 15,900,000 15900000.00
B8 Hamilton Forest Park OH 45240 Multifamily 12,500,000 12461491.04
A26 Harris Houston TX 77057 Multifamily 11,080,000 11080000.00
A27.1 Boone Columbia MO 65203 Multifamily
A27.2 Boone Columbia MO 65203 Multifamily
A27.3 Boone Columbia MO 65203 Multifamily
A27 Multifamily 11,100,000 11061024.75
A28 Camden Lindenwold NJ 8021 Multifamily 11,059,635 11059635.00
B9 Orange Orlando FL 32839 Multifamily 11,000,000 10959221.65
A29 San Francisco San Francisco CA 94102 Multifamily 10,000,000 9979712.54
A30 Burlington Eastampton NJ 8060 Multifamily 9,977,812 9977812.00
A31 Harrison Biloxi MS 39531 Multifamily 9,520,000 9520000.00
A32 Harris Houston TX 77060 Multifamily 9,163,350 9163350.00
A33 Baltimore Baltimore MD 21244 Multifamily 8,304,867 8304867.00
A34 Camden Cherry Hill Township NJ 8002 Multifamily 7,907,688 7907688.00
A35 Snohomish Lynnwood WA 98037 Multifamily 7,600,000 7585616.75
A36 Anne Arundel Glen Burnie MD 21601 Multifamily 7,600,000 7573021.43
B10 McLean Normal IL 61761 Multifamily 7,400,000 7363510.14
A37 Kent Dover DE 19901 Multifamily 7,366,340 7366340.00
B11 Clark Ridgefield WA 98642 Multifamily 6,950,000 6924684.86
B12 King Kent WA 98042 Multifamily 6,800,000 6761942.42
B13 Orange Anaheim CA 92801 Multifamily 5,750,000 5729681.93
A38 Boone Columbia MO 65202 Multifamily 5,550,000 5530512.38
A39 Baltimore Baltimore MD 21244 Multifamily 5,338,171 5338171.00
A40 Cuyahoga East Cleveland OH 44118 Multifamily 4,080,000 4071981.92
A41 Hillsborough Tampa FL 33607 Multifamily 4,000,000 3978855.26
A42 McLean Bloomington IL 61701 Multifamily 3,960,000 3951987.32
B14 Riverside Indio CA 92201 Multifamily 3,620,000 3609130.82
B15 Orange Costa Mesa CA 92627 Multifamily 3,500,000 3483710.66
A43 Orange Orlando FL 32818 Multifamily 3,525,000 3423807.13
A44 Marion Indianapolis IN 46227 Multifamily 3,200,000 3108137.06
A45 Benton Kennewick WA 99336 Multifamily 3,197,000 3102267.45
B16 Madison Huntsville AL 35816 Multifamily 2,600,000 2588157.87
A46 Fresno Fresno CA 93726 Multifamily 2,593,000 2583736.48
B17 Jefferson Birmingham AL 35215 Multifamily 2,425,000 2417205.53
A47 Fresno Fresno CA 93727 Multifamily 2,300,000 2295982.42
A48 Orange Orlando FL 32808 Multifamily 2,325,000 2258255.71
A49 Lee Fort Myers FL 33901 Multifamily 2,175,000 2167279.14
A50 Chatham Savannah GA 31419 Multifamily 2,100,000 2039714.83
A51 Salt Lake South Salt Lake UT 84115 Multifamily 1,949,000 1904802.10
A52 Elkhart Goshen IN 46526 Multifamily 1,950,000 1894021.06
A53 Hillsborough Tampa FL 33604 Multifamily 1,850,000 1843432.84
B18 Merced Winton CA 95388 Multifamily 1,850,000 1840238.53
B19 Douglas Lawrence KS 66046 Multifamily 1,800,000 1786685.73
A54 Marion Indianapolis IN 46227 Multifamily 1,686,250 1637842.57
A55 Franklin Gahanna OH 43230 Multifamily 1,650,000 1602633.25
A56 Franklin Columbus OH 43213 Multifamily 1,575,000 1529786.11
A57 Marion Indianapolis IN 46229 Multifamily 1,500,000 1456939.24
A58 Palm Beach West Palm Beach FL 33417 Multifamily 1,350,000 1311241.30
A59 Tift Tifton GA 31794 Multifamily 1,342,500 1303960.72
A60 Alachua Gainesville FL 32601 Multifamily 1,280,000 1275466.13
B20 Philadelphia Philadelphia PA 19144 Multifamily 1,240,000 1224811.94
A61 Clayton Jonesboro GA 30236 Multifamily 1,230,000 1194690.12
B21.1 McLean Bloomington IL 61704 Multifamily
B21.2 McLean Bloomington IL 61704 Multifamily
B21 Multifamily 1,190,000 1184449.32
B22 Canyon Caldwell ID 83605 Multifamily 1,110,877 1106466.05
A62 Franklin Columbus OH 43232 Multifamily 1,140,000 1104751.54
A63 Sandusky Fremont OH 43420 Multifamily 1,125,000 1092704.56
B23 Philadelphia Philadelphia PA 19144 Multifamily 1,100,000 1084247.40
A64 Brevard Cocoa FL 39222 Multifamily 900,000 874161.03
A65 Lake Eustis FL 32726 Multifamily 881,250 855951.93
B24 Philadelphia Philadelphia PA 19144 Multifamily 855,000 843938.13
A66 Wayne Lincoln Park MI 48146 Multifamily 750,000 736421.58
A67 Broward Ft. Lauderdale FL 33312 Multifamily 600,000 597943.86
A68 Montgomery Dayton OH 45407 Multifamily 600,000 584051.56
A69 Polk Winter Haven FL 33884 Multifamily 600,000 582775.58
A70 Madison Cazenovia NY 13035 Multifamily 500,000 488518.10
A71 New York New York NY 10010 Office 87,200,000 87200000.00
A72 San Mateo South San Francisco CA 94080 Office 34,000,000 33952359.40
A73 Dallas Richardson TX 75080 Office 25,600,000 25523893.27
A74 Maricopa Scottsdale AZ 85260 Office 24,700,000 24573859.38
A75 Maricopa Phoenix AZ 85008 Office 18,000,000 17945954.44
A76 King Bellevue WA 98004 Office 16,500,000 16490786.50
B25 Prince George's Beltsville MD 20705 Office 16,000,000 15972832.25
A77 Dallas Irving TX 75063 Office 14,900,000 14854242.41
B26 Washington Cecil Township PA 15317 Office 10,900,000 10817504.40
B27 King Redmond WA 98052 Office 10,500,000 10484381.95
A78 Washington Tigard OR 97223 Office 7,370,000 7360076.33
A79 Clark Las Vegas NV 89128 Office 7,000,000 6968178.40
A80 Multnomah Portland OR 97204 Office 6,900,000 6891149.34
A81 Jefferson Parish Metairie LA 70001 Office 6,500,000 6491526.31
A82 Multnomah Portland OR 97204 Office 5,780,000 5772331.17
B28 Santa Clara Mountain View CA 94040 Office 5,000,000 4966778.37
A83 San Diego San Diego CA 92108 Office 3,950,000 3848012.35
B29 King Federal Way WA 98003 Office 3,600,000 3579575.10
A84 Washington Beaverton OR 97005 Office 3,300,000 3295629.27
B30 Santa Clara Palo Alto CA 94301 Office 3,100,000 3037408.56
B31 Orange Newport Beach CA 92660 Office 3,000,000 2988443.40
B32.1 Beaufort Hilton Head Island SC 29926 Office
B32.2 Beaufort Hilton Head Island SC 29928 Office
B32.3 Beaufort Hilton Head Island SC 29926 Industrial
B32 Various 2,925,000 2913677.34
A85 Greenville Greenville SC 29615 Office 2,922,360 2913195.73
B33 Bexar San Antonio TX 78229 Office 2,900,000 2846757.86
B34 Philadelphia Philadelphia PA 19147 Office 2,843,500 2827935.57
B35 Riverside Temecula CA 92590 Office 2,800,000 2791265.23
B36 Orange Santa Ana CA 92706 Office 2,800,000 2784318.67
A86 Clark North Las Vegas NV 89030 Office 2,562,000 2495404.38
A87 Salt Lake Magna UT 84044 Office 2,450,000 2429331.05
B37 Clark Las Vegas NV 89128 Office 2,315,000 2311246.34
B38 Los Angeles Glendale CA 91205 Office 2,235,000 2223742.80
B39 Clark Las Vegas NV 89120 Office 1,500,000 1493978.16
B40 Palm Beach West Palm Beach FL 33411 Office 1,285,000 1278959.30
A88 Boulder Longmont CO 80504 Office 862,635 856989.58
A89 Clackamas West Linn OR 97068 Office 750,000 724480.95
A90 Jefferson Wheat Ridge CO 80033 Office 733,000 719020.25
A91 Riverside Riverside CA 92501 Hotel 18,000,000 17912607.30
A92 District of Columbia Washington DC 20036 Hotel 13,500,000 13324255.85
A93 Anne Arundel Linthicum MD 21090 Hotel 8,550,000 8498406.15
B41 Genesee Grand Blanc MI 48439 Industrial 15,700,000 15642813.29
A94 Fulton Atlanta GA 30336 Industrial 12,917,500 12891151.86
A95 Fulton Atlanta GA 30336 Industrial 11,225,000 11202104.11
A96.1 Onondaga Lysander NY 13027 Industrial
A96.2 Wayne Lyons NY 14489 Industrial
A96 Industrial 9,000,000 8970311.58
B42 Seneca Fostoria OH 44830 Industrial 8,250,000 8172130.02
B43 Hall Gainesville GA 30503 Industrial 8,000,000 7970078.96
B44 San Diego El Cajon CA 92020 Industrial 6,665,000 6627082.68
B45 Oklahoma Oklahoma City OK 73279 Industrial 5,600,000 5579602.17
B46 Los Angeles Del Aire CA 90250 Industrial 5,400,000 5370296.81
A97 Clark Vancouver WA 98682 Industrial 4,600,000 4593889.13
B47 Dallas Farmers Branch TX 75234 Industrial 4,275,000 4254098.24
A98 Bucks Bristol PA 19007 Industrial 4,148,635 4133303.62
B48 Los Angeles Chatsworth CA 91311 Industrial 3,520,000 3509425.79
B49 Hillsborough Tampa FL 33610 Industrial 3,080,000 3046658.91
B50 San Diego San Diego CA 92123 Industrial 2,700,000 2686211.34
A99 Wright Clarion IA 50525 Industrial 2,600,000 2577382.46
A100 Prince William Woodbridge VA 22191 Industrial 2,400,000 2387785.84
B51 Philadelphia Philadelphia PA 19116 Industrial 2,250,000 2236796.06
B52 Shelby Memphis TN 38118 Industrial 2,100,000 2075346.38
A101 Bergen Hackensack NJ 7601 Industrial 1,800,000 1791137.45
B53 San Diego San Marcos CA 92079 Industrial 1,500,000 1489425.73
B54.1 Dallas Farmers Branch TX 75234 Industrial
B54.2 Dallas Dallas TX 75229 Industrial
B54 Industrial 1,420,000 1408080.33
A102 Montgomery Moraine (Dayton) OH 45439 Industrial 1,087,500 1057777.43
A103 Porter Chesterton IN 46304 Industrial 900,000 881018.60
B55 Orange Mission Viejo CA 92653 Industrial 755,000 749037.46
B56 Orange Mission Viejo CA 92653 Industrial 745,000 739274.34
B57 Niagra Lockport NY 14094 Mobile Home 5,430,000 5396757.19
B58 Henry Locust Grove GA 30248 Mobile Home 4,000,000 3992201.96
B59 Pinellas St Petersburg FL 33702 Mobile Home 3,500,000 3480921.20
B60 Palm Beach West Palm Beach FL 33406 Mobile Home 2,750,000 2739220.06
B61 Santa Cruz Nogales AZ 85621 Mobile Home 2,550,000 2545756.10
B62 Santa Cruz Santa Cruz CA 95062 Mobile Home 2,300,000 2287864.13
B63 Orange Lake Forest CA 92630 Mobile Home 2,400,000 1978725.43
B64 Williamson Weir TX 78627 Mobile Home 1,950,000 1939710.92
B65 Wichita Wichita Falls TX 76306 Mobile Home 1,550,000 1530465.52
B66 San Bernardino Yucaipa CA 92399 Mobile Home 1,500,000 1495493.93
B67 Maricopa Avondale AZ 85323 Mobile Home 1,400,000 1385761.78
B68 San Diego Flinn Springs CA 92021 Mobile Home 1,350,000 1346511.33
B69 San Bernardino Apple Valley CA 92307 Mobile Home 1,000,000 996821.53
A104 Larimer Fort Collins CO 80524 Mobile Home 615,000 597236.42
B70 Galveston Bacliff TX 77518 Mobile Home 550,000 542831.92
A105 Santa Clara San Jose CA 95111 Self-Storage 5,100,000 5077591.18
B71 Santa Clara San Jose CA 95116 Self-Storage 4,900,000 4868397.75
B72 San Diego Chula Vista CA 92138 Self-Storage 4,050,000 3999274.72
A106 Los Angeles Los Angeles CA 90015 Self-Storage 3,340,000 3299572.44
B73 Los Angeles Torrance CA 90503 Self-Storage 2,925,000 2909078.52
A107 Kanawha Charleston WV 25304 Self-Storage 2,175,000 2123284.97
A108 Kanawha South Charleston WV 25309 Self-Storage 1,221,000 1191968.32
3,396,000 3315253.29
A109 King Seattle WA 98144 Self-Storage 1,873,000 1840553.74
A110 Maricopa Chandler AZ 85224 Self-Storage 1,600,000 1595769.79
B74 Bannock Pocatello ID 83204 Self-Storage 1,100,000 1089144.07
B75 Orange Costa Mesa CA 92627 Self-Storage 983,000 973073.13
------------------------------------------------------------- ---------------------------------------------
$ 953,320,436 948131109.42
=============================================
MORTGAGE LOAN SCHEDULE
Sub- Master Stanby Interest
Loan Loan Mortgage Administrative Servicing Servicing Servicing Accrual
Sequence Type Sequence Number Rate Fee Rate (i) Fee Rate Fee Fee Method
-------- ---- -------- ------ ---- ------------ -------- --- --- ------
A1 Balloon A1 51084 6.6900% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A2 Balloon A2 52597 7.2000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A3 Balloon A3 52466 8.4800% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A4 Fully Amortizing A4 53343 7.9500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A5 Balloon A5 54536 7.4000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A6 Balloon A6 51020 7.2100% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A7 Balloon A7 51674 8.2600% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A8 Balloon A8 53894 7.9200% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A9 Balloon A9 54141 7.6000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A10 Balloon A10 54473 7.5000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A11 Balloon A11 51935 7.9900% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A12 Balloon A12 52506 8.3200% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A13 Balloon A13 53965 7.8800% 0.0940% 0.0500% 0.0400% 0.0075% ACT/360
B1 Balloon B1 303000144 8.5000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B2 Balloon B2 318000251 7.9500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B3 Balloon B3 308000248 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A14 Balloon A14 54297 8.1000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A15 Balloon A15 54134 7.9000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B4 Balloon B4 306000170 9.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A16 Balloon A16 54322 7.8000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B5 Balloon B5 302000146 9.2500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B6 Balloon B6 275000145 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A17 Balloon A17 600012 8.5000% 0.2440% 0.2000% 0.0400% 0.0075% ACT/360
A18 Balloon A18 53623 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B7 Balloon B7 415000207 8.1250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A19 Balloon A19 51958 8.4000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A20 Balloon A20 51981 8.8000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A21 Balloon A21 51984 8.4500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A22 Balloon A22 51979 8.8500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A23 Balloon A23 51987 8.6400% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A24 Balloon A24 54816 7.0600% 0.0740% 0.0300% 0.0400% 0.0075% ACT/360
A25 Balloon A25 54781 6.8800% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B8 Balloon B8 100000268 7.3700% 0.1940% 0.1500% 0.0400% 0.0075% ACT/360
A26 Balloon A26 54813 7.0600% 0.0740% 0.0300% 0.0400% 0.0075% ACT/360
A27.1 A27.1 53169
A27.2 A27.2 53169
A27.3 A27.3 53169
A27 Balloon A27 53169 7.5500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A28 Hyper Amortizing A28 53411 8.3270% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B9 Balloon B9 400000262 7.3000% 0.2140% 0.1700% 0.0400% 0.0075% ACT/360
A29 Balloon A29 54503 7.1000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A30 Hyper Amortizing A30 53414 8.3270% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A31 Balloon A31 54812 7.0600% 0.0740% 0.0300% 0.0400% 0.0075% ACT/360
A32 Balloon A32 54814 7.0600% 0.0740% 0.0300% 0.0400% 0.0075% ACT/360
A33 Hyper Amortizing A33 53406 8.3270% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A34 Hyper Amortizing A34 53410 8.3270% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A35 Balloon A35 53247 7.3600% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A36 Balloon A36 54277 7.5000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B10 Balloon B10 820000196 7.9000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A37 Hyper Amortizing A37 53412 8.3270% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B11 Balloon B11 800000218 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B12 Balloon B12 302000148 8.5500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B13 Balloon B13 415000222 8.1250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A38 Balloon A38 53079 7.5500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A39 Hyper Amortizing A39 53407 8.3270% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A40 Balloon A40 54625 7.2200% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A41 Balloon A41 54226 7.8000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A42 Balloon A42 53509 7.1100% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B14 Balloon B14 415000242 7.5000% 0.1640% 0.1200% 0.0400% 0.0075% ACT/360
B15 Balloon B15 415000195 7.7000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A43 Balloon A43 51944 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A44 Balloon A44 51955 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A45 Balloon A45 51973 7.1900% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B16 Balloon B16 400000201 8.2200% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
A46 Balloon A46 54029 8.0800% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B17 Balloon B17 400000228 7.9500% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
A47 Balloon A47 54109 7.6500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A48 Balloon A48 51945 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A49 Balloon A49 54448 7.5000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A50 Balloon A50 51950 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A51 Balloon A51 51977 8.1700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A52 Balloon A52 51954 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A53 Balloon A53 54449 7.5000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B18 Balloon B18 302000163 8.5000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B19 Balloon B19 245990128 8.5000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A54 Balloon A54 51956 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A55 Balloon A55 51953 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A56 Balloon A56 51952 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A57 Balloon A57 51957 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A58 Balloon A58 51943 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A59 Balloon A59 51949 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A60 Balloon A60 54321 7.5100% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B20 Balloon B20 410990032 7.8000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A61 Balloon A61 51948 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B21.1 B21.1 820000210
B21.2 B21.2 820000210
B21 Balloon B21 820000210 8.1250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B22 Balloon B22 440000198 8.3750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A62 Balloon A62 51933 8.1300% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A63 Balloon A63 51951 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B23 Balloon B23 410990031 7.7500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A64 Balloon A64 51942 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A65 Balloon A65 51946 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B24 Balloon B24 410990033 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A66 Balloon A66 51989 8.9100% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A67 Balloon A67 53630 8.2500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A68 Balloon A68 51982 8.2500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A69 Balloon A69 51947 7.3700% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A70 Balloon A70 51986 8.8300% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A71 Balloon A71 54059 6.7000% 0.0790% 0.0350% 0.0400% 0.0075% ACT/360
A72 Balloon A72 54656 7.1400% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A73 Balloon A73 53531 7.5500% 0.0940% 0.0500% 0.0400% 0.0075% ACT/360
A74 Balloon A74 53967 8.0000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A75 Balloon A75 53879 7.5000% 0.0940% 0.0500% 0.0400% 0.0075% ACT/360
A76 Balloon A76 54748 7.3620% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B25 Balloon B25 260000223 7.7500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A77 Balloon A77 54664 7.4200% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B26 Balloon B26 312000213 8.2500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B27 Balloon B27 800000214 8.2000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A78 Balloon A78 54742 7.3010% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A79 Balloon A79 52141 7.8020% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A80 Balloon A80 54745 7.4940% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A81 Balloon A81 54606 7.4300% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A82 Balloon A82 54746 7.3600% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B28 Balloon B28 304000155 7.9000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A83 Balloon A83 51225 7.1420% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B29 Balloon B29 800000173 8.5000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A84 Balloon A84 54739 7.3670% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B30 Balloon B30 310000202 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B31 Balloon B31 240000220 8.5000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B32.1 B32.1 100000215
B32.2 B32.2 100000215
B32.3 B32.3 100000215
B32 Balloon B32 100000215 8.4800% 0.1940% 0.1500% 0.0400% 0.0075% ACT/360
A85 Balloon A85 53749 8.0600% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B33 Balloon B33 290990122 8.6250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B34 Balloon B34 275990124 8.5600% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B35 Balloon B35 311000208 8.6250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B36 Balloon B36 240000187 8.2700% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A86 Balloon A86 51941 7.9200% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A87 Balloon A87 52387 7.9500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B37 Balloon B37 400000275 7.9100% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B38 Balloon B38 415000188 8.3750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B39 Balloon B39 309000203 8.7100% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B40 Balloon B40 815000171 8.6500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A88 Balloon A88 600055 8.4200% 0.2440% 0.2000% 0.0400% 0.0075% ACT/360
A89 Balloon A89 51978 7.5900% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A90 Balloon A90 51990 8.6400% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A91 Balloon A91 54674 8.2900% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A92 Balloon A92 52533 9.2000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A93 Balloon A93 51872 8.8600% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B41 Balloon B41 820000190 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A94 Balloon A94 54221 7.6000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A95 Balloon A95 54222 7.6000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A96.1 A96.1 53806
A96.2 A96.2 53806
A96 Balloon A96 53806 7.7500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B42 Balloon B42 308000246 7.8750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B43 Balloon B43 100000225 7.8900% 0.1740% 0.1300% 0.0400% 0.0075% ACT/360
B44 Balloon B44 415000152 8.4900% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B45 Balloon B45 240000204 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B46 Balloon B46 400000169 8.3400% 0.2140% 0.1700% 0.0400% 0.0075% ACT/360
A97 Balloon A97 54740 7.3550% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B47 Balloon B47 311000219 8.2500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A98 Balloon A98 54055 7.9400% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B48 Balloon B48 315000232 8.2500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B49 Balloon B49 430990121 8.8750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B50 Balloon B50 430000217 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A99 Balloon A99 54700 7.5000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A100 Balloon A100 53675 8.0200% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B51 Balloon B51 275000160 8.3750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B52 Balloon B52 400000141 8.0900% 0.1840% 0.1400% 0.0400% 0.0075% ACT/360
A101 Balloon A101 53529 8.2100% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B53 Balloon B53 415000192 8.6250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B54.1 B54.1 430990126
B54.2 B54.2 430990126
B54 Balloon B54 430990126 8.8750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A102 Balloon A102 51980 8.6300% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A103 Balloon A103 51983 9.0100% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B55 Balloon B55 415000149 8.2500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B56 Balloon B56 415990127 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B57 Balloon B57 400000162 8.6250% 0.2139% 0.1700% 0.0400% 0.0075% ACT/360
B58 Balloon B58 400000255 7.2500% 0.2240% 0.1800% 0.0400% 0.0075% ACT/360
B59 Balloon B59 400000181 8.3750% 0.2240% 0.1800% 0.0400% 0.0075% ACT/360
B60 Balloon B60 400000229 7.8750% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B61 Balloon B61 400000267 7.8200% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B62 Balloon B62 400000183 8.5000% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B63 Fully Amortizing B63 300980019 10.3000% 2.3340% 2.2900% 0.0400% 0.0075% ACT/360
B64 Balloon B64 400000186 8.5000% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B65 Balloon B65 400990118 8.5500% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B66 Balloon B66 400000231 8.2500% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B67 Balloon B67 400000154 8.8400% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B68 Balloon B68 400000233 8.2500% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
B69 Balloon B69 415000221 8.0000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A104 Balloon A104 51985 7.8000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B70 Balloon B70 400000143 8.3750% 0.2340% 0.1900% 0.0400% 0.0075% ACT/360
A105 Balloon A105 53552 7.8000% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B71 Balloon B71 302000168 8.5000% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B72 Balloon B72 415990105 8.1300% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A106 Fully Amortizing A106 52336 7.8500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B73 Balloon B73 302000206 8.7250% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
A107 Balloon A107 51937 8.6500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A108 Balloon A108 51938 8.6500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A109 Balloon A109 51974 8.8300% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
A110 Balloon A110 53127 8.1500% 0.1440% 0.1000% 0.0400% 0.0075% ACT/360
B74 Balloon B74 440000205 9.2500% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
B75 Balloon B75 295000135 8.8750% 0.1340% 0.0900% 0.0400% 0.0075% ACT/360
MORTGAGE LOAN SCHEDULE
Original Original Remaining
Term to Amort Term to Mat Total
Monthly Mat/ARD Term Mat/ ARD ARD Crossed Units/Room/ SF/Unit/
Sequence Payment (months) (months) IO Period (months) Date Loans Bed Room/Bed
-------- ------- -------- -------- --------- -------- ---- ---- --- --------
A1 $95,081 120 360 104 2/1/2010 No 130,000 SF
A2 70,594 120 360 118 4/1/2011 No 104,285 SF
A3 53,821 120 360 110 8/1/2010 No 48,897 SF
A4 85,986 96 96 94 4/1/2009 No 105,233 SF
A5 40,654 120 300 118 4/1/2011 No 62,053 SF
A6 37,670 120 360 100 10/1/2009 No 75,839 SF
A7 39,102 120 360 111 9/1/2010 No 92,353 SF
A8 30,548 120 360 116 2/1/2011 No 75,040 SF
A9 25,419 120 360 118 4/1/2011 No 16,197 SF
A10 22,095 120 360 116 2/1/2011 No 50,740 SF
A11 22,363 120 300 92 2/1/2009 No 71,806 SF
A12 20,701 120 300 113 11/1/2010 No 58,695 SF
A13 16,685 120 360 114 12/1/2010 No 19,878 SF
B1 18,118 120 300 108 6/1/2010 No 60,422 SF
B2 15,370 120 300 117 3/1/2011 No 32,857 SF
B3 15,808 120 228 116 2/1/2011 No 39,557 SF
A14 15,589 81 240 76 10/2/2007 No 73,064 SF
A15 12,537 120 360 117 3/1/2011 No 9,826 SF
B4 12,069 120 360 109 7/1/2010 No 23,000 SF
A16 12,361 120 240 116 2/1/2011 No 41,000 SF
B5 10,752 120 360 108 6/1/2010 No 9,032 SF
B6 8,989 120 360 107 5/1/2010 No 11,180 SF
A17 11,029 120 180 108 6/1/2010 No 10,760 SF
A18 7,400 120 360 115 1/1/2011 No 10,195 SF
B7 7,796 120 360 112 10/1/2010 No 10,200 SF
A19 8,185 120 300 97 7/1/2009 No 15,700 SF
A20 6,192 120 300 93 3/1/2009 No 22,140 SF
A21 6,053 120 240 91 1/1/2009 No 8,166 SF
A22 3,565 120 300 93 3/1/2009 No 12,287 SF
A23 2,607 120 300 99 9/1/2009 No 4,225 SF
A24 139,222 120 360 24 118 4/1/2011 No 336 Units
A25 104,505 120 360 36 118 4/1/2011 No 284 Units
B8 86,292 120 360 116 2/1/2011 No 412 Units
A26 74,163 120 360 24 118 4/1/2011 No 296 Units
A27.1 245 Units
A27.2 183 Units
A27.3 164 Units
A27 77,993 120 360 115 1/1/2011 No 592 Units
A28 88,215 120 295 36 112 10/1/2010 No 412 Units
B9 75,413 120 360 115 1/1/2011 No 336 Units
A29 67,203 120 360 117 3/1/2011 No 34 Units
A30 79,586 120 295 36 112 10/1/2010 No 240 Units
A31 63,721 120 360 24 118 4/1/2011 No 190 Units
A32 61,334 120 360 24 118 4/1/2011 No 384 Units
A33 66,242 120 295 36 112 10/1/2010 No 228 Units
A34 63,074 120 295 36 112 10/1/2010 No 188 Units
A35 52,414 120 360 117 3/1/2011 No 148 Units
A36 53,140 120 360 115 1/1/2011 No 203 Units
B10 53,784 120 360 112 10/1/2010 No 176 Units
A37 58,756 120 295 36 112 10/1/2010 No 212 Units
B11 50,997 120 360 114 12/1/2010 No 114 Units
B12 52,527 120 360 109 7/1/2010 No 175 Units
B13 42,694 120 360 114 12/1/2010 No 104 Units
A38 38,997 120 360 115 1/1/2011 No 282 Units
A39 42,579 120 295 36 112 10/1/2010 No 172 Units
A40 27,750 120 360 117 3/1/2011 No 274 Units
A41 30,345 120 300 115 1/1/2011 No 135 Units
A42 26,639 120 360 117 3/1/2011 No 100 Units
B14 25,312 120 360 116 2/1/2011 No 80 Units
B15 24,954 120 360 113 11/1/2010 No 60 Units
A43 25,752 120 300 95 5/1/2009 No 169 Units
A44 23,378 120 300 95 5/1/2009 No 139 Units
A45 22,985 120 300 95 5/1/2009 No 110 Units
B16 19,478 120 360 112 10/1/2010 No 120 Units
A46 19,171 120 360 114 12/1/2010 No 90 Units
B17 17,709 120 360 115 1/1/2011 No 96 Units
A47 16,319 120 360 117 3/1/2011 No 112 Units
A48 16,985 120 300 95 5/1/2009 No 140 Units
A49 15,208 120 360 115 1/1/2011 No 84 Units
A50 15,342 120 300 95 5/1/2009 No 89 Units
A51 15,263 144 300 121 7/1/2011 No 72 Units
A52 14,246 120 300 95 5/1/2009 No 90 Units
A53 12,935 120 360 115 1/1/2011 No 57 Units
B18 14,225 120 360 110 8/1/2010 No 88 Units
B19 13,840 120 360 106 4/1/2010 No 122 Units
A54 12,319 120 300 95 5/1/2009 No 77 Units
A55 12,054 120 300 95 5/1/2009 No 73 Units
A56 11,506 120 300 95 5/1/2009 No 70 Units
A57 10,958 120 300 95 5/1/2009 No 73 Units
A58 9,863 120 300 95 5/1/2009 No 50 Units
A59 9,808 120 300 95 5/1/2009 No 72 Units
A60 8,959 120 360 115 1/1/2011 No 28 Units
B20 8,926 120 360 101 11/1/2009 No 62 Units
A61 8,986 120 300 95 5/1/2009 No 46 Units
B21.1 30 Units
B21.2 12 Units
B21 8,836 120 360 112 10/1/2010 No 42 Units
B22 8,443 120 360 113 11/1/2010 No 30 Units
A62 8,897 120 300 90 12/1/2008 No 47 Units
A63 8,219 120 300 95 5/1/2009 No 69 Units
B23 7,881 120 360 98 8/1/2009 No 54 Units
A64 6,575 120 300 95 5/1/2009 No 51 Units
A65 6,438 120 300 95 5/1/2009 No 50 Units
B24 6,274 120 360 99 9/1/2009 No 32 Units
A66 6,248 120 300 99 9/1/2009 No 32 Units
A67 4,508 120 360 114 12/1/2010 No 22 Units
A68 4,731 120 300 93 3/1/2009 No 49 Units
A69 4,383 120 300 95 5/1/2009 No 38 Units
A70 4,138 120 300 94 4/1/2009 No 32 Units
A71 599,725 120 300 60 118 4/1/2011 No 319,766 SF
A72 229,409 120 360 118 4/1/2011 No 170,081 SF
A73 179,876 120 360 116 2/1/2011 No 192,213 SF
A74 190,639 120 300 115 1/1/2011 No 354,888 SF
A75 125,859 120 360 116 2/1/2011 No 223,400 SF
A76 113,815 120 360 119 5/1/2011 No 119,098 SF
B25 114,626 120 360 117 3/1/2011 No 210,522 SF
A77 109,336 110 300 107 5/1/2010 No 159,000 SF
B26 85,941 120 300 112 10/1/2010 No 96,046 SF
B27 78,514 120 360 117 3/1/2011 No 53,000 SF
A78 50,532 120 360 118 4/1/2011 No 66,132 SF
A79 50,401 120 360 113 11/1/2010 No 58,389 SF
A80 48,217 120 360 118 4/1/2011 No 90,026 SF
A81 45,138 120 360 118 4/1/2011 No 85,386 SF
A82 39,862 120 360 118 4/1/2011 No 91,341 SF
B28 36,340 120 360 109 7/1/2010 No 21,776 SF
A83 26,657 120 360 87 9/1/2008 No 56,276 SF
B29 27,681 120 360 109 7/1/2010 No 57,260 SF
A84 22,774 120 360 118 4/1/2011 No 48,674 SF
B30 29,625 120 180 113 11/1/2010 No 4,997 SF
B31 23,067 120 360 113 11/1/2010 No 27,056 SF
B32.1 10,730 SF
B32.2 8,152 SF
B32.3 14,071 SF
B32 22,449 120 360 113 11/1/2010 No 32,953 SF
A85 21,566 120 360 115 1/1/2011 No 27,800 SF
B33 25,397 120 240 108 6/1/2010 No 47,078 SF
B34 21,998 119 360 108 6/1/2010 No 40,000 SF
B35 21,778 120 360 114 12/1/2010 No 79,343 SF
B36 21,075 120 360 110 8/1/2010 No 56,224 SF
A86 19,638 120 300 95 5/1/2009 No 32,900 SF
A87 20,417 120 240 115 1/1/2011 No 16,007 SF
B37 16,842 120 360 117 3/1/2011 No 19,467 SF
B38 16,988 120 360 111 9/1/2010 No 17,438 SF
B39 11,758 120 360 112 10/1/2010 No 16,095 SF
B40 10,017 120 360 111 9/1/2010 No 23,828 SF
A88 6,900 120 300 113 11/1/2010 No 9,609 SF
A89 5,586 120 300 90 12/1/2008 No 9,334 SF
A90 5,972 120 300 99 9/1/2009 No 13,807 SF
A91 142,402 120 300 115 1/1/2011 No 235 Rooms
A92 115,146 119 300 103 1/1/2010 No 156 Rooms
A93 70,933 120 300 113 11/1/2010 No 137 Rooms
B41 115,201 120 360 114 12/1/2010 No 673,396 SF
A94 96,301 120 300 118 4/1/2011 No 545,778 SF
A95 83,683 120 300 118 4/1/2011 No 481,300 SF
A96.1 240,000 SF
A96.2 240,000 SF
A96 73,885 120 240 118 4/1/2011 No 480,000 SF
B42 69,865 120 228 115 1/1/2011 No 588,000 SF
B43 58,089 120 360 114 12/1/2010 No 319,027 SF
B44 51,201 120 360 109 7/1/2010 No 106,506 SF
B45 41,091 120 360 114 12/1/2010 No 115,416 SF
B46 40,911 120 360 110 8/1/2010 No 62,685 SF
A97 31,708 120 360 118 4/1/2011 No 108,000 SF
B47 33,706 120 300 115 1/1/2011 No 75,517 SF
A98 30,268 120 360 114 12/1/2010 No 100,032 SF
B48 26,445 120 360 115 1/1/2011 No 83,239 SF
B49 25,584 120 300 107 5/1/2010 No 136,992 SF
B50 20,839 120 300 115 1/1/2011 No 45,530 SF
A99 24,102 108 180 105 3/1/2010 No 126,900 SF
A100 18,555 120 300 115 1/1/2011 No 53,625 SF
B51 17,102 120 360 109 7/1/2010 No 75,000 SF
B52 16,334 120 300 108 6/1/2010 No 181,064 SF
A101 14,144 120 300 115 1/1/2011 No 39,782 SF
B53 12,205 120 300 112 10/1/2010 No 22,800 SF
B54.1 43,000 SF
B54.2 19,880 SF
B54 11,795 120 300 110 8/1/2010 No 62,880 SF
A102 8,852 120 300 91 1/1/2009 No 46,000 SF
A103 7,559 120 300 95 5/1/2009 No 41,145 SF
B55 5,672 120 360 106 4/1/2010 No 9,988 SF
B56 5,467 120 360 107 5/1/2010 No 10,350 SF
B57 42,234 120 360 108 6/1/2010 No 326 Pads
B58 27,287 120 360 117 3/1/2011 No 288 Pads
B59 26,603 120 360 110 8/1/2010 No 236 Pads
B60 19,941 120 360 115 1/1/2011 No 96 Pads
B61 18,392 120 360 117 3/1/2011 No 140 Pads
B62 17,685 120 360 110 8/1/2010 No 120 Pads
B63 26,233 180 180 125 11/1/2011 No 159 Pads
B64 14,994 84 360 74 8/1/2007 No 121 Pads
B65 12,533 120 300 106 4/1/2010 No 243 Pads
B66 11,269 120 360 115 1/1/2011 No 132 Pads
B67 11,596 120 300 108 6/1/2010 No 106 Pads
B68 10,142 120 360 116 2/1/2011 No 50 Pads
B69 7,338 120 360 115 1/1/2011 No 107 Pads
A104 4,665 120 300 93 3/1/2009 No 36 Pads
B70 4,383 120 300 106 4/1/2010 No 51 Pads
A105 38,689 120 300 116 2/1/2011 No 838 Units
B71 39,456 120 300 113 11/1/2010 No 639 Units
B72 31,608 120 300 107 5/1/2010 No 827 Units
A106 31,850 180 180 176 2/1/2016 No 778 Units
B73 24,005 120 300 114 12/1/2010 No 474 Units
A107 17,734 120 300 94 4/1/2009 Yes(BACM 01-1-E) 700 Units
A108 9,956 120 300 94 4/1/2009 Yes(BACM 01-1-E) 516 Units
A109 15,501 120 300 100 10/1/2009 No 507 Units
A110 12,508 120 300 117 3/1/2011 No 609 Units
B74 10,075 180 240 173 11/1/2015 No 476 Units
B75 8,165 120 300 108 6/1/2010 No 52 Units
(i) Administrative Fee Rate includes the Sub-Servicing Fee Rate.
(ii) For Mortgage Loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day yr. or a 365-day yr., the
amortization term is the term over which the Mortgage Loans would
amortize if interest accrued and was paid on the basis of a 360-day yr.
consisting of twelve 30-day months. The actual amoritzation would be
longer.
(iii) For purposes of calculating the Underwritten DSCRs for Mortgage Loan
Nos. 53406, 53407, 53410, 53411, 53412 and 53414 (the "LOC Loans"), the
amount available under certain letters of credit securing such Mortgage
Loans was deducted from the applicable principal balance for purposes of
debt service calculations. For purposes of calculating the LTV Ratios
for the LOC Loans (other than LTV Ratios at maturity or ARD), the
principal balances of the Mortgage Loans were reduced by the amount of
such letters of credit. Please note that such letters of credit may be
released if certain debt service coverage tests are met.
SCHEDULE II
BANK OF AMERICA, N.A.
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 of Texas, LP (successor in interest
to L.J. Melody & Company), Midland Loan Services, Inc. (successor in interest to
Midland Loan Services, L.P.), Berkshire Mortgage Finance Bethesda Limited
Partnership and WMF Washington Mortgage Corp. (successor in interest to
Washington Mortgage Financial Group, Ltd.), as supplemented by Subservicer
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 N&TSA) and Subservicer Addition
Agreement, by Collateral Mortgage Capital, LLC. as supplemented by the
Confirmation thereto dated as of May 30, 2001.
Bank of America, N.A. Sub-Servicers:
- -----------------------------------
Bank of America, N.A.
Berkshire Mortgage Finance Bethesda Limited Partnership
Collateral Mortgage Capital, LLC
L.J. Melody & Company of Texas, LP
SCHEDULE III
EXCEPTIONS TO INITIAL FILE DELIVERY
There were no exceptions reported by the Trustee as of May 30, 2001.
SCHEDULE 5
(SECURITY DOCUMENTS)
Loan No. Exception
- -------- ---------
51938 A UCC was not filed with the Ohio Secretary
of State (where the Borrower was formed).
415000152 UCC was not filed with the Secretary of State
of California.
300980019 There is no evidence in the loan file that a
UCC was filed at the county level.
400000143 There is no record of a UCC being filed with
the Texas Secretary of State.
800000214 No recorded Deed of Trust or UCC's in file.
SCHEDULE 6
(TITLE INSURANCE)
400000143 TLTA Policy (Texas) issued by First American
Title Insurance Co. Marked up commitment
doesn't include "successors and assigns"
(Texas issue) and Final Title policy not in
file. A frame garage encroaching 5.0' into
10' utility easement - not insured in marked
up commitment in file.
SCHEDULE 13
(INSURANCE)
Loan No. Exception
- -------- ---------
54536 Provided that the tenant at the Property,
Winn Dixie, is investment grade, Mortgagor is
not required to obtain insurance.
240000204 The related Mortgage Loan Documents allow the
tenant, ABI, a wholly owned subsidiary of
Anheuser-Busch, Companies, Inc., to self
insure. The tenant has exercised its option
to self insure the related Mortgaged Property
against any losses which would ordinarily be
covered by insurance.
100000225 Each tenant pays its own liability insurance.
SCHEDULE 14
(ENVIRONMENTAL MATTERS)
820000190 A septic leach field is documented as having
been located to the west of the 100 Cell
building, near the southwest corner of the
property. According to the site contact, the
septic field area was partially excavated in
1974. However, due to the lack of
documentation and visible indications of the
former septic field, it is not possible to
conclude with certainty that the field was
entirely excavated. The Phase I consultant
did not recommend any further action in
connection with this matter.
SCHEDULE 16
(WAIVERS AND MODIFICATIONS)
LOAN NO. EXCEPTION
- -------- ---------
300980019 There is an indication in the securitization
file that the principal and interest payments
have been modified.
SCHEDULE 18
(MORTGAGOR INTEREST)
Loan No. Exception
- -------- ---------
51872 This deal uses an Indemnity Deed of Trust
structure ("IDOT"). In an IDOT, the Borrower
is not the owner of the property. A separate
entity owns the property and enters into the
Deed of Trust. In this case, the interest of
the owning entity, and the interest mortgaged
by the Indemnity Deed of Trust, is fee
simple.
SCHEDULE 23
(ENCROACHMENTS)
Loan No. Exception
- -------- ---------
54816 The Zoning Letter in the Mortgage Loan file
does not contain a statement confirming
compliance nor does it contain a zoning
opinion letter or zoning endorsement to the
Lender's title policy.
54739 Zoning Letter in the file indicates that
warehouse use is prohibited for the premises
and does not state that the current use is
legal, nonconforming. The zoning letter
states that if the building were destroyed,
it would have to be constructed in accordance
with then-current zoning regulations.
415990105 Deed of Trust representation states the
property is in conformance with zoning; the
zoning letter from City of Chula Vista states
property is in compliance but the Title
Policy says its not in conformance, but is
insuring it nonetheless.
400000181 The related Mortgage Property is a legal
non-conforming use. Individual units may be
rebuilt on a 1:1 basis as approved by the
Environmental Development Commission. Law and
ordinance insurance was not obtained.
400000154 The related Mortgaged Property currently has
one parking space per unit and is a legal
non-conforming use. The 1990 zoning ordinance
requires two parking spaces per unit. The
ordinance indicates the owner would be unable
to rebuild if 50% or more of the project is
destroyed. Law and ordinance coverage was not
required by Bridger.
SCHEDULE 29
(LICENSES AND PERMITS)
Loan No. Exception
- -------- ---------
55116 No certificate of occupancy in file; however,
the property is over thirty years old.
53414 No certificate of occupancy in file.
SCHEDULE 39
(SUBORDINATE DEBT)
LOAN NO. EXCEPTION
- -------- ---------
415000152 The City of El Cajon holds a 2nd Deed of
Trust in the amount of $185,000 at 8%, and
have signed a subordination agreement. The
2nd Deed of Trust provides that repayment is
not due unless the property rents increase
substantially and the NOI increases by over
$20,000 per year. The holder of the 2nd Deed
has not agreed to forebear foreclosure
actions on the related Mortgaged Property so
long as the Mortgage Loan is outstanding and
the Special Service on behalf of the Trust is
not pursuing a foreclosure action.
300980019 The related Mortgaged Property is encumbered
by three subordinate liens with an aggregate
balance of approximately $2,378,000.
SCHEDULE 45
(SUBORDINATE LIENS)
Loan No. Exception
- -------- ---------
51985 There is no provision in the mortgage
prohibiting junior liens without the prior
written consent of the lender.
51872 The Loan Agreement permits the Mortgagor to
have additional debt secured by hotel
equipment, which lien may be superior to the
lien of the Security Instrument; provided,
however, that the aggregate amount of such
outstanding additional debt may not exceed
$400,000.
600012 Additional liens are permitted on the
Premises if they are for (1) taxes,
assessments, or similar charges either not
yet due or being contested in good faith, or
(2) liens which in the aggregate constitute
an immaterial and insignificant monetary
amount with respect to the net value of the
Mortgagor's assets.
600055 Additional liens are permitted on the
Premises if they are for (1) taxes,
assessments, or similar charges either not
yet due or being contested in good faith, or
(2) liens which in the aggregate constitute
an immaterial and insignificant monetary
amount with respect to the net value of the
Mortgagor's assets.
SCHEDULE 48
(GROUND LEASES)
Loan No. Exception
- -------- ---------
52336 (b) (I) There are no provisions
prohibiting the Lessor from disturbing 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 Leases for any reason,
or in any manner, which would materially and
adversely affect the security provided by the
related Mortgage.
(c) (J) Such Ground Leases do permit
an increase in the amount of rent payable by
the lessee thereunder during the term of the
Mortgage Loan, which increases are made very
five (5) years and are tied into the consumer
price index for all urban consumers in the
Los Angeles-Long Beach and Anaheim area. The
maximum increase is five percent (5%) per
annum compounded annually.
54536 (d) (K) Holder is granted the same
amount of time to cure that the tenant has
under the Ground Lease.
52007 (e) (A) The lessor has not agreed not
to terminate or cancel the Ground Lease
without lender's consent.
(f) (B) The Ground Lease and the
ground lease estoppel agreement do not
provide that the Ground Lease will remain
prior to any Mortgage or other lien upon the
fee interest.
(g) (G) The Ground Lease and the
ground lease estoppel agreement do not
require the lessor to enter unto a new lease
with the Lender upon a termination of the
Ground Lease.
(h) (J) The rent due under the Ground
Lease increases to $16,000 in 2002, $17,000
in 2003 and $18,000 from 2004 on.
53343 (i) (J) The rent due under the Ground
Lease may increase during the term of the
loan.
(L) The Ground Lease expires on May 31, 2018,
with no extensions available. The Mortgage
Loan is a fully amortizing Mortgage Loan
which matures on April 1, 2009.
300980019 C) Application of insurance proceeds or
condemnation awards are not at the sole
discretion of Bridger.
E) Lessor's prior written consent may be
required for future assignments by the
Trustee and its successors and assigns.
J) Ground lease provides for rent increases
during the term of the Mortgage Loan.
415000242 A four foot strip of land located on the
boundary line of parking area is subject to a
ground lease. BCRF determined that the loss
of the parcel would have not a detrimental
effect on the Mortgaged Property.
SCHEDULE 53
(DEFEASANCE)
Loan No. Exception
- -------- ---------
51933 The following Mortgage Loans each constitute
the principal asset of an individual single
Loan REMIC.
51935
51937
51938
51941
51942
51943
51944
51945
51946
51947
51948
51949
51950
51951
51952
51953
51954
51955
51956
51957
SCHEDULE 57
(Underwriting Standards)
LOAN NO. EXCEPTION
- -------- ---------
100000225 Each tenant provides its own liability
insurance and there is no umbrella liability
coverage. Midamco is guaranteeing payment of
insurance.
300980019 Insurance impounds are not collected
400000255 Umbrella liability insurance amounts is less
than Bridger minimum of $2,000,000 for loans
under $2,000,000.
400000154 The property has a septic and well system
rather than municipal water and sewer.
SCHEDULE 60
(Transfers)
LOAN NO. EXCEPTION
- -------- ---------
52533 There is no customary "due-on-sale" clause in
the Mortgage. However, the Mortgage contains
an express prohibition that the prevents the
Mortgagor from selling the Mortgaged
Property.
400990118 The Mortgage Loan Documents permit transfers
by two tenant-in-common parties, Keith A.
Fenderson and Brenda K. Fenderson, of their
interest in the Mortgaged Property to the
remaining tenant-in-common party, Sunrise
Park, L.P. and also provide that if any of
the tenants in common become a debtor in
bankruptcy, any one of the other tenants in
common shall have the right to purchase the
bankrupt tenant in common party's interest at
fair market value. There is no requirement of
notice to or consent by the Mortgagee for
such transfers.