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FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
FIRST UNION NATIONAL BANK
Master Servicer
and
FIRST UNION NATIONAL BANK
Special Servicer
and
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2001
------------------------------
$1,308,278,729
Commercial Mortgage Pass-Through Certificates
Series 2001-C1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms...............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans................................
SECTION 2.02 Acceptance of the Trust Fund by Trustee.....................
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties............................
SECTION 2.04 Representations and Warranties of Depositor.................
SECTION 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC I by
Trustee...................................................
SECTION 2.06 Execution, Authentication and Delivery of Class R-I
Certificates..............................................
SECTION 2.07 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.......................................
SECTION 2.08 Execution, Authentication and Delivery of REMIC II
Certificates and Issuance of Class A-2F Regular
Interest..................................................
SECTION 2.09 Conveyance of Class A-2F Regular Interest; Execution,
Authentication and Delivery of Class A-2F 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; Reserve Accounts......................
SECTION 3.04 Certificate Account, Interest Reserve Account,
Additional Interest Account, Distribution Account and
Floating Rate Account.....................................
SECTION 3.05 Permitted Withdrawals From the Certificate Account,
Interest Reserve Account, the Additional Interest
Account and the Distribution Account......................
SECTION 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account, the Additional Interest Account
and the REO Account.......................................
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.....................................
SECTION 3.08 Enforcement of Alienation Clauses...........................
SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required
Appraisals................................................
SECTION 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.....................................................
SECTION 3.11 Servicing Compensation......................................
SECTION 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports...................
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 Mortgage Loans and REO Properties...................
SECTION 3.19 Additional Obligations of Master Servicer and Special
Servicer..................................................
SECTION 3.20 Modifications, Waivers, Amendments and Consents.............
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping..........................
SECTION 3.22 Sub-Servicing Agreements....................................
SECTION 3.23 Representations and Warranties of Master Servicer and
Special Servicer..........................................
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty.........
SECTION 3.25 Designation of Controlling Class Representative.............
SECTION 3.26 Swap Documents..............................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions...............................................
SECTION 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File...............................................
SECTION 4.03 P&I Advances................................................
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Certificate Deferred Interest;
Allocation of Appraisal Reduction Amounts.................
SECTION 4.05 Calculations................................................
SECTION 4.06 Use of Agents...............................................
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.......................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicer and Special
Servicer..................................................
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.......................
SECTION 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer......................................
SECTION 6.04 Resignation of Master Servicer and the Special Servicer.....
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.........................
SECTION 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee....................................
SECTION 6.07 Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer......................................
SECTION 6.08 Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer..........................................
SECTION 6.09 Designation of Special Servicer by the Controlling Class....
SECTION 6.10 Master Servicer or Special Servicer as Owner of a
Certificate...............................................
SECTION 6.11 The Controlling Class Representative........................
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 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 and Expenses of Trustee; Indemnification of Trustee....
SECTION 8.06 Eligibility Requirements for Trustee........................
SECTION 8.07 Resignation and Removal of 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 Appointment of Authenticating Agents........................
SECTION 8.13 Appointment of Paying Agent.................................
SECTION 8.14 Appointment of REMIC Administrators.........................
SECTION 8.15 Access to Certain Information...............................
SECTION 8.16 Representations, Warranties and Covenants of Trustee........
SECTION 8.17 Reports to the Securities and Exchange Commission;
Available Information.....................................
SECTION 8.18 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 TAX PROVISIONS
SECTION 10.01 REMIC Administration........................................
SECTION 10.02 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 Grant of a Security Interest................................
SECTION 11.08 ▇▇▇▇▇▇ Act..................................................
SECTION 11.09 Successors and Assigns; Beneficiaries.......................
SECTION 11.10 Article and Section Headings................................
SECTION 11.11 Notices to Rating Agencies..................................
SECTION 11.12 Complete Agreement..........................................
EXHIBITS
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Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class A-1 Certificate A-1 Section 1.01 Definition of "Class
A-1 Certificate"
Form of Class A-2 Certificate A-2.1 Section 1.01 Definition of "Class
A-2 Certificate"
Form of Class A-2F Certificate A-2.2 Section 1.01 Definition of "Class
A-2F Certificate"
Form of Class IO-I Certificate A-3.1 Section 1.01 Definition of "Class
IO-I Certificate"
Form of Class IO-II Certificate A-3.2 Section 1.01 Definition of "Class
IO-II Certificate"
Form of Class IO-III Certificate A-3.3 Section 1.01 Definition of "Class
IO-III Certificate"
Form of Class B Certificate A-4 Section 1.01 Definition of "Class B
Certificate"
Form of Class C Certificate A-5 Section 1.01 Definition of "Class C
Certificate"
Form of Class D Certificate A-6 Section 1.01 Definition of "Class D
Certificate"
Form of Class E Certificate A-7 Section 1.01 Definition of "Class E
Certificate"
Form of Class F Certificate A-8 Section 1.01 Definition of "Class F
Certificate"
Form of Class G Certificate A-9 Section 1.01 Definition of "Class G
Certificate"
Form of Class H Certificate A-10 Section 1.01 Definition of "Class H
Certificate"
Form of Class J Certificate A-11 Section 1.01 Definition of "Class J
Certificate"
Form of Class K Certificate A-12 Section 1.01 Definition of "Class K
Certificate"
Form of Class L Certificate A-13 Section 1.01 Definition of "Class L
Certificate"
Form of Class M Certificate A-14 Section 1.01 Definition of "Class M
Certificate"
Form of Class N Certificate A-15 Section 1.01 Definition of "Class N
Certificate"
Form of Class O Certificate A-16 Section 1.01 Definition of "Class O
Certificate"
Form of Class P Certificate A-17 Section 1.01 Definition of "Class P
Certificate"
Form of Class Q Certificate A-18 Section 1.01 Definition of
"Class Q Certificate"
Form of Class R-I Certificate A-19 Section 1.01 Definition of "Class
R-I Certificate"
Form of Class R-II Certificate A-20 Section 1.01 Definition of "Class
R-II Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of "Mortgage
Loan Schedule"
Schedule of Exceptions to Mortgage File C-1 Section 2.02(a)
Delivery
Form of Custodial Certification C-2 Section 2.02(a)
Form of Master Servicer Request for Release D-1 Section 1.01 Definition of "Request
for Release"; Section 2.03(b);
Section3.10(a); and
Section 3.10(b)
Form of Special Servicer Request for Release D-2 Section 1.01 Definition of "Request
for Release" Section 3.10(b)
Calculation of NOI/Debt Service Coverage E Section 1.01 Definition of "Net
Ratios Operating Income"
[RESERVED] F
Form of Certificate from Holder (Transferor) G-1 Section 5.02(b)
of a Certificate to the Certificate Registrar
Form of Certificate from Proposed Transferee G-2 Section 5.02(b)
of a Certificate to Certificate Registrar
Form of Certificate from Proposed Transferee G-3 Section 5.02(b)
of a Certificate to Certificate Registrar for
non-QIBs
Form of Certificate by Prospective Transferee H Section 5.02(c)
Form of Transfer Affidavit and Agreement I-1 Section 5.02(d)(i)(2)
regarding Class R-I Certificates
Form of Transferor Certificate regarding I-2 Section 5.02(d)(i)(4)
Class R-II Certificates
Form of Notice and Acknowledgment J-1 Section 6.09
Form of Acknowledgment of Proposed Special J-2 Section 6.09
Servicer
[RESERVED] K
[RESERVED] L
Form of CMSA Property File M Section 3.12(c)
Form of Comparative Financial Status Report N Section 3.12(b) and 3.12(c)
Form of REO Status Report O Section 3.12(b) and 3.12(c)
Form of Watch List P Section 3.12(b) and 3.12(c)
Form of Delinquent Loan Status Report Q Section 3.12(b) and 3.12(c)
Form of Historical Loan Modification Report R Section 3.12(b) and 3.12(c)
Form of Historical Liquidation Report S Section 3.12(b) and 3.12(c)
Form of NOI Adjustment Worksheet T Section 3.12(b) and 3.12(c)
Form of Operating Statement Analysis U Section 3.12(b) and 3.12(c)
Form of Interim Delinquent Loan Status Report V Section 3.12(c)
Form of CMSA Periodic Update File W Section 4.02(b)
Form of Certificateholder Confirmation X-1 Section 3.15
Certificate
Form of Prospective Purchaser Certificate X-2 Section 3.15
Form of CMSA Bond File Y Section 3.15
Form of CMSA Collateral Summary File Z Section 3.15
Form of Updated Collection Report AA Section 3.15
Form of CMSA Financial File BB Section 3.12(b)
Form of CMSA Loan Setup File CC Section 3.12(c)
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of March 1, 2001, among FIRST UNION COMMERCIAL MORTGAGE SECURITIES,
INC., as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer, FIRST UNION
NATIONAL BANK, as Special Servicer, and ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder,
the primary assets of which will be the Mortgage Loans.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (exclusive of that portion of
the interest payments thereon that constitute Additional Interest) and certain
other related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I."
The Class R-I Certificates will represent the sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions under federal income tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
REMIC II Regular Interests will be designated as a separate "regular interest"
in REMIC II for purposes of the REMIC Provisions under federal income tax law.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), the Corresponding Components of the Class IO Certificates and the
Original Class Principal Balance for each Class of the REMIC II Certificates
(the "Corresponding Certificates").
Corresponding Original Class Corresponding Corresponding Components of
Certificates (1) Principal Balance REMIC I Regular Class IO Certificates (1)
Interests (1)
Class A-1 $167,224,000.00 ▇▇-▇-▇ ▇▇-▇
▇▇-▇-▇ 2A-1
Class A-2 $793,233,000.00 ▇▇-▇-▇▇ ▇▇-▇▇
▇▇-▇-▇▇▇ ▇▇-▇▇▇
▇▇-▇-▇▇▇▇ ▇▇-▇▇▇▇
▇▇-▇-▇ 2A-2
Class A-2F $60,000,000.00 ▇▇-▇▇-▇▇ ▇▇-▇▇▇
▇▇-▇▇-▇▇▇ 1A-2FBI
▇▇-▇▇-▇▇▇▇ ▇▇-▇▇▇▇▇
▇▇-▇▇-▇ 2A-2F
Class B $52,331,000.00 LB-1I 1BI
LB-1II 1BII
LB-2 2B
Class C $26,166,000.00 LC-1I 1CI
LC-1II 1CII
LC-2 2C
Class D $26,165,000.00 ▇▇-▇▇ ▇▇▇
▇▇-▇▇▇ ▇▇▇▇
▇▇-▇ 2D
Class E $16,354,000.00 ▇▇-▇ ▇▇
▇▇-▇ 2E
Class F $13,082,000.00 LF-1 1F
LF-2 2F
Class G $26,166,000.00 LG-1 1G
LG-2 2G
Class H $16,354,000.00 LH-1 1H
LH-2 2H
Class J $19,624,000.00 LJ-1 1J
LJ-2 2J
Class K $16,353,000.00 LK-1 1K
LK-2 2K
Class L $13,083,000.00 LL-1 1L
LL-2 2L
Class M $6,541,000.00 LM-1 1M
LM-2 2M
Class N $9,812,000.00 ▇▇-▇ ▇▇
▇▇-▇ 2N
Class O $13,083,000.00 ▇▇-▇ ▇▇
▇▇-▇ ▇▇
Class P $6,542,000.00 LP-1 1P
LP-2 2P
Class Q $26,165,728.00 LQ-1 1Q
LQ-2 2Q
------------------------
1 With respect to the Class A-2F, the Class A-2F Regular Interest.
(1) The REMIC I Regular Interest and the Group 1 Components or
Group 2 Components, as applicable, that correspond to any particular Class of
Sequential Pay Certificates also correspond to each other and, accordingly,
constitute the (i) "Corresponding REMIC I Regular Interest" and (ii)
"Corresponding Group 1 Components" or "Corresponding Group 2 Components", as
applicable, respectively, with respect to each other.
The portion of the Trust Fund consisting of: (i) the Additional
Interest and the Additional Interest Account, (ii) amounts held from time to
time in the Additional Interest Account that represent Additional Interest,
(iii) the Class A-2F Regular Interest and the Swap Documents and all payments
under the Class A-2F Regular Interest and the Swap Documents, (iv) the Floating
Rate Account and all amounts held from time to time in the Floating Rate Account
and (v) proceeds of all the foregoing shall be treated as a grantor trust (the
"Grantor Trust") for federal income tax purposes. As provided herein, the
Trustee shall take all actions necessary to ensure that the portion of the Trust
Fund consisting of the Grantor Trust Assets maintains its status as a "grantor
trust" under federal income tax law and not be treated as part of REMIC I or
REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
-------------
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to any Class of REMIC
II Regular Interests (other than the Class IO Certificates), one month's
interest at the Pass-Through Rate applicable to such Class of REMIC II Regular
Interests for such Distribution Date, accrued for the related Interest Accrual
Period on the related Class Principal Balance outstanding immediately prior to
such Distribution Date; and, with respect to the Class IO-I, Class IO-II and
Class IO-III Certificates for any Distribution Date, the sum of the Accrued
Component Interest for the related Interest Accrual Period for all of their
respective Components for such Distribution Date. Accrued Certificate Interest
shall be calculated on a 30/360 Basis and, with respect to any Class of REMIC II
Regular Interests for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to each Component of the
Class IO-I, Class IO-II and Class IO-III Certificates for any Distribution Date,
one month's interest at the Class IO-I Strip Rate, Class IO-II Strip Rate or
Class IO-III Strip Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on a 30/360 Basis and, with respect to any Component and any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on
the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(d) which shall be
entitled "▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee, in trust for the
registered holders of First Union National Bank - Bank of America, N.A.
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C1, Additional Interest Account". The Additional Interest Account shall not
be an asset of REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per annum rate at
which such Mortgage Loan accrues interest after the Anticipated Repayment Date
(in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d) and
4.03(d), interest payable to the Master Servicer and the Trustee on Advances (to
the extent not offset by Penalty Interest and late payment charges) and amounts
payable to the Special Servicer in connection with inspections of Mortgaged
Properties required pursuant to the first sentence of Section 3.12(a) (and not
otherwise paid from Penalty Interest and late payment charges), as well as
(without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (viii), (ix), (xi), (xii), (xiii) and
(xviii) of Section 3.05(a) out of general collections on the Mortgage Loans and
any REO Properties on deposit in the Certificate Account or (y) pursuant to
clause (ii) or any of clauses (iv) through (vi) of Section 3.05(b) out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Distribution Account; provided that for purposes of the allocations
contemplated by Section 4.04 no such expense shall be deemed to have been
incurred by the Trust Fund until such time as the payment thereof is actually
made from the Certificate Account or the Distribution Account, as the case may
be.
"Additional Yield Amount": With respect to any Distribution Date and
the REMIC II Regular Interests (other than the Class IO Certificates and any
Excluded Class) entitled to distributions of principal pursuant to Section
4.01(b) on such Distribution Date, provided that a Yield Maintenance Charge was
actually collected on a Mortgage Loan or an REO Loan during the related
Collection Period, the product of (a) such Yield Maintenance Charge multiplied
by (b) a fraction, which in no event will be greater than one, the numerator of
which is equal to the positive excess, if any, of (i) the Pass-Through Rate for
the REMIC II Regular Interests then receiving principal over (ii) the related
Discount Rate, and the denominator of which is equal to the positive excess, if
any, of (i) the Mortgage Rate for such Mortgage Loan or REO Loan, as the case
may be, over (ii) the related Discount Rate, multiplied by (c) a fraction, the
numerator of which is equal to the amount of principal distributable on such
REMIC II Regular Interests on such Distribution Date pursuant to Section
4.01(b), and the denominator of which is equal to the Principal Distribution
Amount for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the Mortgage Rate for such ARD Loan
will increase as specified in the related Mortgage Note.
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer, prepared in accordance with 12 CFR ss.225.62
and conducted in accordance with the standards of the American Appraisal
Institute by an Independent Appraiser, which Independent Appraiser shall be
advised to take into account the factors specified in Section 3.18(e), any
available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider.
"Appraisal Reduction Amount": The excess, if any, of (a) the sum of,
as calculated by the Master Servicer as of the first Determination Date
immediately succeeding the Master Servicer obtaining knowledge of the occurrence
of the Required Appraisal Date if no new Required Appraisal is required or the
date on which a Required Appraisal (or letter update or internal valuation, if
applicable) is obtained and each Determination Date thereafter so long as the
related Mortgage Loan remains a Required Appraisal Mortgage Loan (without
duplication), (i) the Stated Principal Balance of the subject Required Appraisal
Mortgage Loan, (ii) to the extent not previously advanced by or on behalf of the
Master Servicer or the Trustee, all unpaid interest on the Required Appraisal
Mortgage Loan through the most recent Due Date prior to such Determination Date
at a per annum rate equal to the related Net Mortgage Rate (exclusive of any
portion thereof that constitutes Additional Interest), (iii) all accrued but
unpaid Servicing Fees and all accrued but unpaid Additional Trust Fund Expenses
in respect of such Required Appraisal Mortgage Loan, (iv) all related
unreimbursed Advances (plus accrued interest thereon) made by or on behalf of
the Master Servicer or the Trustee with respect to such Required Appraisal
Mortgage Loan and (v) all currently due and unpaid real estate taxes and
unfunded improvement reserves and assessments, insurance premiums, and, if
applicable, ground rents in respect of the related Mortgaged Property over (b)
an amount equal to the sum of (i) the Required Appraisal Value and (ii) all
escrows, reserves and letters of credit held for the purposes of reserves
(provided such letters of credit may be drawn upon for reserve purposes under
the related Mortgage Loan document) held with respect to such Required Appraisal
Mortgage Loan. If the Special Servicer fails to obtain a Required Appraisal (or
letter update or internal valuation, if applicable) within the time limit
described in Section 3.09(a), the Appraisal Reduction Amount for the related
Required Appraisal Mortgage Loan will equal 25% of the outstanding principal
balance of such Required Appraisal Mortgage Loan, to be adjusted upon receipt of
a Required Appraisal or letter update or internal valuation, if applicable.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal (or letter update
or internal valuation, if applicable) that is contained in the related Servicing
File.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage
Loan for its Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full and no other Liquidation Event has occurred in respect thereof on
or before such Stated Maturity Date) and for any Due Date thereafter as of which
such Mortgage Loan remains outstanding and part of the Trust Fund, the Periodic
Payment of principal and/or interest deemed to be due in respect thereof on such
Due Date that would have been due in respect of such Mortgage Loan on such Due
Date if the related Mortgagor had been required to continue to pay principal in
accordance with the amortization schedule, if any, and to accrue interest at the
Mortgage Rate, in effect on the Closing Date and without regard to the
occurrence of its Stated Maturity Date. With respect to any REO Loan, for any
Due Date therefor as of which the related REO Property remains part of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to be due in
respect thereof on such Due Date that would have been due in respect of the
predecessor Mortgage Loan on such Due Date had it remained outstanding (or, if
the predecessor Mortgage Loan was a Balloon Mortgage Loan and such Due Date
coincides with or follows what had been its Stated Maturity Date, the Assumed
Scheduled Payment that would have been deemed due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Certificate Account and the Distribution
Account as of the close of business on the related Determination Date and the
amounts collected by or on behalf of the Master Servicer as of the close of
business on such Determination Date and required to be deposited in the
Certificate Account, (ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account
during the month of such Distribution Date, on or prior to the P&I Advance Date
in such month, pursuant to Section 3.16(c), (iv) the aggregate amount deposited
by the Master Servicer in the Certificate Account for such Distribution Date
pursuant to Section 3.19 in connection with Prepayment Interest Shortfalls, and
(v) for each Distribution Date occurring in March, the aggregate of the Interest
Reserve Amounts in respect of each Interest Reserve Loan deposited into the
Distribution Account pursuant to Section 3.05(c), net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this definition that
represents one or more of the following: (i) collected Periodic Payments that
are due on a Due Date following the end of the related Collection Period, (ii)
any amounts payable or reimbursable to any Person from the (A) Certificate
Account pursuant to clauses (ii)-(xiv) and (xviii) of Section 3.05(a) or (B) the
Distribution Account pursuant to clauses (ii) - (vi) of Section 3.05(b), (iii)
Prepayment Premiums and Yield Maintenance Charges, (iv) Additional Interest, (v)
with respect to the Distribution Date occurring in February of each year and in
January of each year that is not a leap year, the Interest Reserve Amounts with
respect to the Interest Reserve Loans to be withdrawn from the Certificate
Account and deposited in the Interest Reserve Account in respect of such
Distribution Date and held for future distribution pursuant to Section 3.04(c)
and (vi) any amounts deposited in the Certificate Account or the Distribution
Account in error.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Scheduled Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Banc of America Securities": Banc of America Securities LLC or its
successor in interest.
"Bank of America": Bank of America, N.A. or its successor in
interest.
"Bank of America Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Bank of America
Mortgage Loan Purchase Agreement.
"Bank of America Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 1, 2001, between the
Depositor and Bank of America relating to the transfer of the Bank of America
Mortgage Loans to the Depositor.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": 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, New York, Minneapolis, Minnesota, or the cities in which the Corporate
Trust Office of the Trustee (which as of the Closing Date is Columbia, Maryland)
or the offices of the Master Servicer (which as of the Closing Date is
Charlotte, North Carolina) are located, are authorized or obligated by law or
executive order to remain closed. With respect to the computation of LIBOR, any
day other than a day on which banking institutions in London, England are
authorized or obligated by law to remain closed.
"Business Hour": Any 60-minute interval between 9:00 a.m. and
5:00 p.m., in the related time zone, on any Business Day.
"CERCLA": The Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate": Any one of the First Union National Bank - Bank
of America, N.A. Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C1, as executed by the Certificate Registrar and
authenticated and delivered hereunder by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "First
Union National Bank, as Master Servicer for ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Trustee, on behalf of and in trust for the registered holders of First Union
National Bank - Bank of America, N.A. Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2001-C1".
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates is reduced by the
amount of Mortgage Deferred Interest allocable to such Class on any Distribution
Date.
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates as of any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then current Class
Principal Balance of such Class of Sequential Pay Certificates, and the
denominator of which is the Original Class Principal Balance of such Class of
Sequential Pay Certificates.
"Certificate Notional Amount": With respect to any Class IO-I, Class
IO-II or Class IO-III Certificate, as of any date of determination, the then
notional amount of such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate, multiplied by (b) the then Class
Notional Amount of such Class IO-I, Class IO-II or Class IO-III Certificates, as
applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Certificate for any purpose hereof and, (ii) solely for the purposes of giving
any consent, approval or waiver pursuant to this Agreement that relates to any
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, or the Trustee in its respective capacity as such (except with respect
to amendments or waivers referred to in Sections 7.04 and 11.01 hereof and any
consent, approval or waiver required or permitted to be made by the Majority
Subordinate Certificateholder or the Controlling Class Representative and any
election, removal or replacement of the Special Servicer or the Controlling
Class Representative pursuant to Section 6.09), any Certificate registered in
the name of the Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer, or the Trustee, as the case may be, or any Certificate
registered in the name of any of their respective Affiliates, shall be deemed
not to be outstanding, and the Voting Rights to which it is entitled shall not
be taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver that relates to
it has been obtained. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Master Servicer or the Special
Servicer in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1, Class A-2 and 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 II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2.1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"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 Yield Maintenance Charges (to the extent the Swap Counterparty is
entitled to such amounts pursuant to Section 4.01(d)(ii)), 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-2.2 attached hereto, and evidencing an interest in the Grantor Trust as
described in Section 4.01(c).
"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 II, which shall consist of an
interest having a Certificate Principal Balance equal to the Certificate
Principal Balance of the Class A-2F Certificates, and which has a Pass-Through
Rate equal to the per annum rate of 6.13600% 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-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO Certificates": The Class IO-I, Class IO-II and Class
IO-III Certificates.
"Class IO-I Certificate": Any one of the Certificates with a "Class
IO-I" designation on the face thereof, substantially in the form of Exhibit
A-3.1 attached hereto, and evidencing the Group 1-I Components and a "regular
interest" in REMIC II for purposes of the REMIC Provisions.
"Class IO-I Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all of the Group 1-I Components.
"Class IO-I Strip Rate": With respect to any Class of Group 1-I
Components (other than Components 1A-2BI, 1A-2FBI, 1BI, 1CI and 1DI for any
Distribution Date, a rate per annum equal to (i) the Weighted Average Net
Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate for
the Corresponding Certificates (or in the case of Component 1A-2FBI, the Class
A-2F Regular Interest) and in the case of Components 1A-2BI, 1A-2FBI, 1BI, 1CI
and 1DI (i) for any Distribution Date occurring on or before the Class IO-II
Termination Date, 0% per annum, and (ii) for any Distribution Date occurring
after the Class IO-II Termination Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding Certificates, or in the case of
Component 1A-2FBI, the Class A-2F Regular Interest (provided that in no event
shall any Class IO-I Strip Rate be less than zero).
"Class IO-II Certificate": Any one of the Certificates with a "Class
IO-II" designation on the face thereof, substantially in the form of Exhibit
A-3.2 attached hereto, and evidencing the Group 1-II Components and a "regular
interest" in REMIC II for purposes of the REMIC Provisions.
"Class IO-II Notional Amount": As of any date of determination,
the sum of the then Component Notional Amounts of the Group 1-II Components.
"Class IO-II Strip Rate": With respect to the Group 1-II Components
for any Distribution Date, the product of a rate per annum equal to (i) for any
Distribution Date occurring on or before the Class IO-II Termination Date, (x)
the Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the
Pass-Through Rate for the Corresponding Certificates, or in the case of
Component 1A-2FBII, the Class A-2F Regular Interest (provided that in no event
shall any Class IO-II Strip Rate be less than zero), and (ii) for any
Distribution Date occurring after the Class IO-II Termination Date, 0% per
annum.
"Class IO-II Termination Date": The Distribution Date in March 2009.
"Class IO-III Certificate": Any one of the Certificates with a
"Class IO-III" designation on the face thereof, substantially in the form of
Exhibit A-3.3 attached hereto, and evidencing the Group 2 Components and a
"regular interest" in REMIC II for purposes of the REMIC Provisions.
"Class IO-III Notional Amount": As of any date of determination,
the sum of the then Component Notional Amounts of all of the Group 2
Components.
"Class IO-III Strip Rates": With respect to any Class of Group 2
Components for such Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Corresponding Certificates, or in the case of
Component 2A-2F, the Class A-2F Regular Interest (provided that in no event
shall any Class IO-III Strip Rate be less than zero).
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
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 M Certificate": Any one of the Certificates with a "Class M"
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 N Certificate": Any one of the Certificates with a "Class N"
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 Notional Amount": The Class IO-I Notional Amount, the
Class IO-II Notional Amount or the Class IO-III Notional Amount.
"Class O Certificate": Any one of the Certificates with a "Class O"
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 P Certificate": Any of the Certificates with a "Class P"
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 Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates shall equal the Original Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be reduced by the amount of any distributions of principal
made thereon on such Distribution Date pursuant to Section 4.01 or 9.01, as
applicable, and shall be further reduced by the amount of any Realized Losses
and Additional Trust Fund Expenses allocated thereto on such Distribution Date
pursuant to Section 4.04(a). The Class Principal Balance of any Class of
Sequential Pay Certificates will be increased on any Distribution Date by the
amount of any Certificate Deferred Interest allocated to such Class on such
Distribution Date. Distributions in respect of a reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Sequential Pay Certificates shall not constitute distributions of principal and
shall not result in reduction of the related Class Principal Balance.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
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
REMIC Provisions.
"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-19
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Closing Date": March 30, 2001.
"CMSA": The Commercial Mortgage Securities Association (formerly the
Commercial Real Estate Secondary Market and Securitization Association, the
"CSSA") or any successor organization.
"CMSA Bond File": The monthly report in the "CMSA Bond File" format
substantially in the form of and containing the information called for therein,
a form of which is attached hereto as Exhibit Y, or such other form for the
presentation of such information as may be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Bond File" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The monthly report in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, a form of which is attached hereto as Exhibit Z,
or such other form for the presentation of such information as may be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Collateral Summary File"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Trustee.
"CMSA Financial File": The monthly report in the "CMSA Financial
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a form of which is attached hereto as
Exhibit BB, or such other form for the presentation of such information as may
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Financial File" available
as of the Closing Date on the CMSA website, is reasonably acceptable to the
Master Servicer or the Special Servicer, as applicable.
"CMSA Loan Periodic Update File": The monthly report in the "CMSA
Loan Periodic Update File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a form of which is
attached hereto as Exhibit W, or such other form for the presentation of such
information as may be recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Loan
Periodic Update File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Trustee, Master Servicer and the Special Servicer.
"CMSA Loan Setup File": The monthly report in the "CMSA Loan Setup
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a form of which is attached hereto as
Exhibit CC, or such other form for the presentation of such information as may
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Loan Setup File" available
as of the Closing Date on the CMSA website, is reasonably acceptable to the
Trustee, Master Servicer and the Special Servicer.
"CMSA Property File": The monthly report in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for each Mortgaged Property, a form of which is attached hereto as
Exhibit M, or such other form for the presentation of such information as may be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Property File" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Collection Period": With respect to any Distribution Date, the
period commencing on the day immediately following the Determination Date for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-off Date) and ending on and
including the related Determination Date.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit N attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgage Loan or the related Mortgaged Property,
calculated as of the last day of the calendar month immediately preceding the
preparation of such report, for (i) each of the three immediately preceding
monthly periods (to the extent such information is available), (ii) the most
current available year-to-date, (iii) the previous two full fiscal years stated
separately, and (iv) the "base year" (representing the original analysis of
information used as of the Cut-off Date). For the purposes of the Master
Servicer's production of any such report that is required to state information
for any period prior to the Cut-off Date, the Master Servicer may conclusively
rely (without independent verification), absent manifest error, on information
provided to it by the related Mortgage Loan Seller.
"Component": Each of Component 1A-1, Component 2A-1, Component
▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, Component 2A-2, Component 1A-2FA,
Component 1A-2FBI, Component 1A-2FBII, Component 2A-2F, Component 1BI, Component
1BII, Component 2B, Component 1CI, Component 1CII, Component 2C, Component 1DI,
Component 1DII, Component 2D, Component 1E, Component 2E, Component ▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ 1G, Component 2G, Component 1H, Component 2H, Component
1J, Component 2J, Component 1K, Component 2K, Component 1L, Component 2L,
Component 1M, Component 2M, Component 1N, Component 2N, Component 1O, Component
2O, Component 1P, Component 2P, Component 1Q and Component 2Q.
"Component 1A-1": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any date of
determination.
"Component 1A-2A": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2-1A as of any date of
determination.
"Component 1A-2BI": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LA-2-1BI as of any
date of determination.
"Component 1A-2BII": One of five components of the Class IO-II
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LA-2-1BII as of
any date of determination.
"Component 1A-2FA": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2F-1A.
"Component 1A-2FBI": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LA-2F-1BI.
"Component 1A-2FBII": One of five components of the Class IO-II
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LA-2F-1BII.
"Component 1BI": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LB-1I as of any
date of determination.
"Component 1BII": One of five components of the Class IO-II
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LB-1II as of any
date of determination.
"Component 1CI": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LC-1I as of any
date of determination.
"Component 1CII": One of five components of the Class IO-II
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LC-1II as of any
date of determination.
"Component 1DI": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LD-1I as of any
date of determination.
"Component 1DII": One of five components of the Class IO-II
Certificates having a Component Notional Amount equal to two times the then
current REMIC I Principal Balance of REMIC I Regular Interest LD-1II as of any
date of determination.
"Component 1E": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LE-1 as of any date of
determination.
"Component 1F": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LF-1 as of any date of
determination.
"Component 1G": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG-1 as of any date of
determination.
"Component 1H": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH-1 as of any date of
determination.
"Component 1J": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ-1 as of any date of
determination.
"Component 1K": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LK-1 as of any date of
determination.
"Component 1L": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LL-1 as of any date of
determination.
"Component 1M": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM-1 as of any date of
determination.
"Component 1N": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN-1 as of any date of
determination.
"Component 1O": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO-1 as of any date of
determination.
"Component 1P": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LP-1 as of any date of
determination.
"Component 1Q": One of twenty components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LQ-1 as of any date of
determination.
"Component 2A-1": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-2 as of any date of
determination.
"Component 2A-2": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2-2 as of any date of
determination.
"Component 2A-2F": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2F-2 as of any date of
determination.
"Component 2B": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LB-2 as of any date of
determination.
"Component 2C": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest :LC-2 as of any date of
determination.
"Component 2D": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LD-2 as of any date of
determination.
"Component 2E": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LE-2 as of any date of
determination.
"Component 2F": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LF-2 as of any date of
determination.
"Component 2G": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG-2 as of any date of
determination.
"Component 2H": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH-2 as of any date of
determination.
"Component 2J": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ-2 as of any date of
determination.
"Component 2K": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LK-2 as of any date of
determination.
"Component 2L": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LL-2 as of any date of
determination.
"Component 2M": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM-2 as of any date of
determination.
"Component 2N": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN-2 as of any date of
determination.
"Component 2O": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO-2 as of any date of
determination.
"Component 2P": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LP-2 as of any date of
determination.
"Component 2Q": One of eighteen components of the Class IO-III
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LQ-2 as of any date of
determination.
"Component Notional Amount": With respect to each Component (other
than Component 1A-2BI, Component 1A-2BII, Component 1A-2FBI, Component 1A-2FBII,
Component 1BI, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, Component 1CII, Component 1DI and
Component 1DII), as of any date of determination, an amount equal to the then
REMIC I Principal Balance of its Corresponding REMIC I Regular Interest. With
respect to each of Component 1A-2BI, Component 1A-2BII, Component 1A-2FBI,
Component 1A-2FBII, Component 1BI, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, Component
1CII, Component 1DI and Component 1DII, as of any date of determination, an
amount equal to two times the then REMIC I Principal Balance of its
Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates, (a) which bears the latest alphabetical Class
designation and (b) the Class Principal Balance of which is (i) greater than 25%
of the Original Class Principal Balance thereof and (ii) equal to or greater
than 1.0% of the sum of the Original Class Principal Balances of all the
Sequential Pay Certificates; provided, however, that if no Class of Sequential
Pay Certificates satisfies clause (b) above, the Controlling Class shall be the
outstanding Class of Certificates (other than the Residual Certificates or the
Class IO Certificates) bearing the latest alphabetical Class designation. With
respect to determining the Controlling Class, the Class A-1 and Class A-2
Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services (CMBS) - First Union
National Bank - Bank of America, N.A. Commercial Mortgage Trust, Series 2001-C1,
and (ii) for all other purposes, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attn: Corporate Trust Services (CMBS) -- First Union National Bank -
Bank of America, N.A. Commercial Mortgage Trust, Series 2001-C1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan in accordance with the definition of "Specially Serviced Mortgage
Loan".
"Corresponding Certificates": As defined in the Preliminary
Statement with respect to any Corresponding Group 1 Component or Corresponding
Group 2 Component or any Corresponding REMIC I Regular Interests.
"Corresponding Components": Each of the Corresponding Group 1
Components and Corresponding Group 2 Components.
"Corresponding Group 1 Components": As defined in the Preliminary
Statement with respect to any Class of Corresponding Certificates or any
Corresponding REMIC I Regular Interest.
"Corresponding Group 2 Components": As defined in the Preliminary
Statement with respect to any Class of Corresponding Certificates or any
Corresponding REMIC I Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates or
any Corresponding Group 1 Component or Corresponding Group 2 Component.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": With respect to any Mortgage Loan, the Due Date for
such Mortgage Loan in March, 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,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Periodic Payments due on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, the ratio of (x) the Net Operating Income (before
payment of any debt service on such Mortgage Loan) generated by the related
Mortgaged Property during the most recently ended period of not less than three
months and not more than twelve months for which financial statements, if
available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) the amount of the
Periodic Payment in effect for such Mortgage Loan as of such date of
determination multiplied by the number of months represented in such financial
statement.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent
sixty days or more in respect to a Periodic Payment (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon Payment,
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Master Servicer or the Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan
on the Mortgage Loan Schedule which permits or requires the related Mortgagor
(or permits the holder of such Mortgage Loan to require the related Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit Q attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but constituted Specially Serviced Mortgage Loans, or were in
foreclosure but were not REO Property and the status of resolution.
"Depositor": First Union Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
11th day of the month in which such Distribution Date occurs, or if such 11th
day is not a Business Day, the Business Day immediately succeeding.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease
or the performance of any construction work thereon or any use of such REO
Property in a trade or business conducted by REMIC I other than through an
Independent Contractor; provided, however, that the Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for purposes of allocating any Yield Maintenance Charge received thereon or
with respect thereto among the respective Classes of the Sequential Pay
Certificates (other than the Class A-2F Certificates and any Excluded Class
thereof) or the Class A-2F Regular Interest, an amount equal to the discount
rate stated in the Mortgage Loan documents related to such Mortgage Loan or REO
Loan used in calculating the related Prepayment Premium or Yield Maintenance
Charge; provided, that if a discount rate is not stated thereon, the "Discount
Rate" will be an amount equal to the yield (when compounded monthly) on the U.S.
Treasury issue with a maturity date closest to the maturity date for such
prepaid Mortgage Loan or REO Loan. In the event there are two or more such U.S.
Treasury issues (a) with the same coupon, the issue with the lowest yield shall
apply, and (b) with maturity dates equally close to the maturity date for the
prepaid Mortgage Loan or REO Loan, the issue with the earliest maturity date
shall apply.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
"Distributable Certificate Interest": With respect to any Class of
REMIC II Regular Interests for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (other than with respect to the Class IO Certificates)(to not less than
zero) by (i) the product of (a) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (b) a fraction, expressed as a
decimal, the numerator of which is the Accrued Certificate Interest in respect
of such Class of Certificates for such Distribution Date, and the denominator of
which is the aggregate Accrued Certificate Interest in respect of all the
Classes of REMIC II Regular Interests for such Distribution Date, and (ii) with
respect to each such Class (other than the Class IO Certificates), such Class'
share of any Certificate Deferred Interest allocated to such Class in accordance
with Section 4.04(c).
"Distribution Account": The segregated account or accounts created
and maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee,
in trust for the registered holders of First Union National Bank - Bank of
America, N.A. Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C1".
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately succeeding, commencing on
April 17, 2001; provided, however, that the Distribution Date will be no earlier
than the fourth Business Day following the Determination Date in the month in
which such Distribution Date occurs.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Periodic Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Periodic Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and with respect to
deposits held for 30 days or more in such account the (a) long-term deposit or
unsecured debt obligations of which are rated at least (A) "Aa3" by Moody's,
provided that the short-term obligations of which are rated at least "P-1" and
(B) "AA-" by Fitch (if then rated by Fitch) (or, with respect to any such Rating
Agency, such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the applicable Rating Agency), at any time such funds are on deposit
therein, or with respect to deposits held for less than 30 days in such account
the (b) short-term deposits of which are rated at least "P-1" by Moody's and
"F-1+" by Fitch (if then rated by Fitch) (or, with respect to any such Rating
Agency, such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates) as evidenced in
writing by the applicable Rating Agency at any time such funds are on deposit
therein, or (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity, which, in the case of a state chartered depository
institution or trust company, is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR ss. 9.10(b), having in
either case a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by federal or state authority, or the use of such
account would not, in and of itself, cause a qualification, downgrading or
withdrawal of the then-current rating assigned to any Class of Certificates, as
confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter in the case of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property is multifamily
property or (ii) the American Society for Testing and Materials in the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class O, Class P and Class Q 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, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by any
of the Mortgage Loan Sellers, pursuant to the First Union Mortgage Loan Purchase
Agreement or the Bank of America Mortgage Loan Purchase Agreement, as
applicable, by the Majority Subordinate Certificateholder pursuant to Section
3.18(b), by the Master Servicer or the Special Servicer pursuant to Section
3.18(c), or by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder pursuant to Section 9.01) that there has been a
recovery of all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable.
"First Union": First Union National Bank or its successor in
interest.
"First Union Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 1, 2001, between the
Depositor and First Union and relating to the transfer of the First Union
Mortgage Loans to the Depositor.
"First Union Mortgage Loans": Each of the Mortgage Loans transferred
and assigned to the Depositor pursuant to the First Union Mortgage Loan Purchase
Agreement.
"First Union Securities": First Union Securities, Inc. or its
successor in interest.
"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 and the Special Servicer, and
specific ratings of Fitch herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"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(f) with respect to the Class A-2F Certificates, which
shall be entitled "▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee, in trust for
the registered holders of First Union National Bank - Bank of America, N.A.
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C1, 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.
"FNMA": Federal National Mortgage Association or any successor.
"Grantor Trust": That certain "grantor trust" (within the meaning of
the Grantor Trust Provisions), the assets of which are the Grantor Trust Assets.
"Grantor Trust Assets": The segregated pool of assets consisting of
the following: (i) any Additional Interest with respect to the ARD Loans after
their respective Anticipated Repayment Dates, (ii) amounts held from time to
time in the Additional Interest Account that represent Additional Interest,
(iii) the Class A-2F Regular Interest and the Swap Documents and all payments
under the Class A-2F Regular Interest and the Swap Documents, (iv) all funds and
assets from time to time on deposit in the Floating Rate Account and (v)
proceeds of all of the foregoing.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Group 1 Component": Each of Component 1A-1, Component ▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, Component 1A-2FA, Component 1A-2FBI,
Component 1A-2FBII, Component 1BI, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Component 1E, Component 1F, Component 1G,
Component 1H, Component 1J, Component 1K, Component 1L, Component 1M, Component
1N, Component 1O, Component 1P and Component 1Q.
"Group 1-I Component": Each Group 1 Component other than Component
1A-2BII, Component 1A-2FBII, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and Component 1DII.
Such Components are collectively evidenced by the Class IO-I Certificates.
"Group 1-II Component": Each of Component 1A-2BII, Component
1A-2FBII, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and Component 1DII. Such Components are
collectively evidenced by the Class IO-II Certificates.
"Group 2 Component": Each of Component 2A-1, Component 2A-2,
Component 2A-2F, Component 2B, Component 2C, Component 2D, Component 2E,
Component 2F, Component 2G, Component 2H, Component 2J, Component 2K, Component
2L, Component 2M, Component 2N, Component 2O, Component 2P and Component 2Q.
Such Components are collectively evidenced by the Class IO-III Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Historical Liquidation Report": A report substantially containing
the information described in Exhibit S attached hereto, setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Historical Loan Modification Report": A report substantially
containing the information described in Exhibit R attached hereto, setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, have been modified pursuant to this Agreement (i) during the related
Collection Period and (ii) since the Cut-off Date, showing the original and the
revised terms thereof.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee or any Affiliate thereof, and (iii) is not connected
with the Depositor, the Master Servicer, the Controlling Class Representative,
the Special Servicer, the Trustee or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Depositor, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, the Master Servicer, the Special Servicer,
the Controlling Class Representative, the Trustee or any Affiliate thereof, as
the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee and the Master Servicer), so long as REMIC I does not receive or derive
any income from such Person and provided that the relationship between such
Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulations Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, to the effect
that the taking of any action in respect of any REO Property by such Person,
subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.08(c).
"Interest Accrual Period": With respect to each Class of REMIC II
Regular Interests, each Interest Accrual Period is deemed to consist of 30 days,
and with respect to the Class A-2F Certificates, each Interest Accrual Period is
deemed to consist of the actual number of days in the related calendar month.
"Interest Reserve Account": The segregated account created and
maintained by the Master Servicer pursuant to Section 3.04(c) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "First Union
National Bank, as Master Servicer for ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Trustee, on behalf of and in trust for the registered holders of First Union
National Bank - Bank of America, N.A. Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2001-C1".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs in February of each year and in
January of each year that is not a leap year, an amount equal to one day's
interest at the related Mortgage Rate on the related Stated Principal Balance as
of the Due Date in the month in which such Distribution Date occurs (but prior
to the application of any amounts owed on such Due Date), to the extent a
Periodic Payment or P&I Advance is made in respect thereof for such Due Date as
of the related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360
Mortgage Loan.
"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 Closing Date.
"Interested Person": The Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any Holder of a Certificate, or any Affiliate of any such
Person.
"Interim Delinquent Loan Status Report": A report substantially
containing the content described in Exhibit V attached hereto, setting forth
those Mortgage Loans which, as of the last day of the calendar month immediately
preceding the preparation of such report, were delinquent.
"Internet Website": The Internet Websites maintained by the Trustee
and, if applicable, the Master Servicer initially located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇" and "▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇", respectively, or such other
address as provided to the parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Scheduled Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period , and not previously recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Scheduled Payment (other than a Balloon Payment) or an
Assumed Scheduled Payment in respect of the predecessor Mortgage Loan or of an
Assumed Scheduled Payment in respect of such REO Loan due or deemed due on a Due
Date in a previous Collection Period and not previously recovered.
"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 pursuant to the First Union
Mortgage Loan Purchase Agreement or the Bank of America Mortgage Loan Purchase
Agreement, as applicable; or (iv) such Mortgage Loan is purchased by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01. With respect to any REO Property
(and the related REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; or (ii) such REO
Property is purchased by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by a Mortgage Loan Seller, pursuant to the First Union Mortgage Loan Purchase
Agreement or the Bank of America Mortgage Loan Purchase Agreement, as
applicable; (vi) the purchase of a Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer, or the Majority Subordinate Certificateholder
pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (other than any Holder which is
an Affiliate of the Depositor or a Mortgage Loan Seller) entitled to greater
than 50% of the Voting Rights allocated to the Controlling Class; provided,
however, that if there is no single Holder of Certificates entitled to greater
than 50% of the Voting Rights allocated to such Class, then the Majority
Subordinate Certificateholder shall be the single Holder of Certificates with
the largest percentage of Voting Rights allocated to such Class. With respect to
determining the Majority Subordinate Certificateholder, the Class A-1
Certificates and the Class A-2 Certificates shall be deemed to be a single Class
of Certificates, with such Voting Rights allocated among the Holders of
Certificates of such Classes in proportion to the respective Certificate
Principal Balances of such Certificates as of such date of determination.
"Master Servicer": First Union National Bank, its successor in
interest (including the Trustee as successor pursuant to Section 7.02), or any
successor master servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan, and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan the
percentage set forth under the column "Master Servicing Fee Rate" on the
Mortgage Loan Schedule.
"Monthly Advance Interest Report": A report with respect to each
Distribution Date setting forth the amount of interest paid on Advances from the
Certificate Account with respect to each Mortgage Loan (on a loan-by-loan basis)
for the related Collection Period.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in
interest. If 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 in writing to the Trustee,
the Master Servicer and the Special Servicer, and specific ratings of Moody's
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
to which the Mortgage Rate has been reduced through a modification and any
Distribution Date, the amount by which (a) interest accrued at such reduced rate
is less than (b) the amount of interest that would have accrued on such Mortgage
Loan at the Mortgage Rate before such reduction, to the extent such amount has
been added to the outstanding principal balance of such Mortgage Loan.
"Mortgage File": With respect to any Mortgage Loan, collectively
the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto), together
with any and all intervening endorsements thereon, endorsed on its face or
by allonge attached thereto (without recourse, representation or warranty,
express or implied) to the order of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
trustee for the registered holders of First Union National Bank - Bank of
America, N.A. Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 or in blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case with evidence of recording
indicated thereon or certified as to the recording by the applicable
recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (c) any other recorded document relating to
the Mortgage Loan otherwise included in the Mortgage File, in favor of
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee for the registered holders of
First Union National Bank - Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1, or in
blank; provided, however, that Bank of America, in its capacity as Mortgage
Loan Seller under the Bank of America Mortgage Loan Purchase Agreement,
shall record such assignments;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee
for the registered holders of First Union National Bank - Bank of America,
N.A. Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C1, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
marked version of the policy that has been executed by an authorized
representative of the title company) to issue such title insurance policy;
and
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC Financing
Statements in favor of the originator of such Mortgage Loan or in favor of
any assignee prior to the Trustee (but only to the extent the Mortgage Loan
Seller had possession of such UCC Financing Statements prior to the Closing
Date) and, if there is an effective UCC Financing Statement and
continuation statements in favor of the Mortgage Loan Seller on record with
the applicable public office for UCC Financing Statements, an original
UCC-2 or UCC-3 assignment, as appropriate, in form suitable for filing, as
appropriate, in favor of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee for
the registered holders of First Union National Bank - Bank of America, N.A.
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2001-C1, or in blank; provided, however, that Bank of America, in
its capacity as Mortgage Loan Seller under the Bank of America Mortgage
Loan Purchase Agreement, shall file such UCC-2 and UCC-3;
(ix) an original or copy of any Ground Lease, guaranty or Ground
Lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor;
(xi) copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) and (ix) (solely with respect to any guaranty) of this definition, shall be
deemed to include only such documents to the extent the Trustee or Custodian has
actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage 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 REMIC I, attached hereto as Exhibit B
and in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and
name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining term to
stated maturity and (C) the Stated Maturity Date and, in the case of an ARD
Loan, the Anticipated Repayment Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for such ARD Loan;
(xii) the related Mortgage Loan Seller;
(xiii) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xiv) whether such Mortgage Loan is a Defeasance Loan;
(xv) whether the Mortgage Loan is secured by a letter of credit;
(xvi) whether such Mortgage Loan is an Interest Reserve Loan;
(xvii) whether payments on such Mortgage Loan are made to a
lock-box; and
(xviii) the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan.
"Mortgage Loan Seller": Bank of America, in its capacity as a
Mortgage Loan Seller, or First Union, in its capacity as a Mortgage Loan Seller.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding, provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360-day year consisting of twelve 30-day months,
then, solely for purposes of calculating the Pass-Through Rates, the Mortgage
Rate of such Mortgage Loan for any one-month period preceding a related Due Date
will be the annualized rate at which interest would have to accrue in respect of
such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Penalty Interest or Additional Interest) in respect of such
Mortgage Loan during such one-month period at the related Mortgage Rate;
provided, however, that with respect to each Interest Reserve Loan, the Mortgage
Rate for the one-month period (A) preceding the Due Dates that occur in January
and February in any year which is not a leap year or preceding the Due Date that
occurs in February in any year which is a leap year will be determined exclusive
of the Interest Reserve Amounts for such months, and (B) preceding the Due Date
in March will be determined inclusive of the Interest Reserve Amounts for the
immediately preceding February and, if applicable, January; provided, further,
that, if the Mortgage Rate of the related Mortgage Loan has been modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20, solely for purposes of calculating
the Pass-Through Rate, the Mortgage Rate for such Mortgage Loan shall be
calculated without regard to such event.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
voluntary Principal Prepayments on the Mortgage Loans during the related
Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the Certificate Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls on the
Mortgage Loans.
"Net Investment Earnings": With respect to the Certificate Account,
the Interest Reserve Account, any Servicing Account, any Reserve Account or the
REO Account (if any) for any Collection Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Collection
Period on funds held in such account, exceeds the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Interest Reserve Account, any Servicing Account, any Reserve Account or the REO
Account (if any) for any Collection Period, the amount by which the aggregate of
all losses, if any, incurred during such Collection Period in connection with
the investment of funds held in such account in accordance with Section 3.06,
exceeds the aggregate of all interest and other income realized during such
Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable Master
Servicing Fee Rate.
"Net Operating Income or NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"Net Swap Payment": As defined in Section 3.26(e).
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of REMIC I, including any lease renewed,
modified or extended on behalf of REMIC I if REMIC I has the right to
renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer, with respect to each Specially Serviced Mortgage Loan and REO Loan and
by the Master Servicer with respect to each other Mortgage Loan substantially
containing the content described in Exhibit T attached hereto, presenting the
computations made in accordance with the methodology described in Exhibit T to
"normalize" the full year net operating income and debt service coverage numbers
used in the other reports required by this Agreement and in accordance with the
most recent CMSA standards, as such standards may change from time to time.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer or the Trustee, as the case may be, that, as determined by the Master
Servicer or the Trustee; as applicable, in accordance with the Servicing
Standard with respect to such P&I Advance will not be ultimately recoverable
from Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Loan by the
Master Servicer, the Special Servicer or the Trustee, as the case may be, that,
as determined by the Master Servicer, the Special Servicer or the Trustee in
accordance with the Servicing Standard and based on an Appraisal dated within 12
months of the date of determination, will not be ultimately recoverable from
Late Collections, Insurance Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class IO, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class Q, Class R-I or Class R-II Certificate.
"Non-United States Person": Any Person other than a United States
Person.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Operating Statement Analysis": With respect to each Mortgage Loan
and REO Mortgaged Property, a report prepared by the Special Servicer with
respect to each Specially Serviced Mortgage Loan and REO Loan and by the Master
Servicer with respect to each other Mortgage Loan substantially containing the
content described in Exhibit U attached hereto and conforming to the most recent
CMSA standard, as such standards may change from time to time.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the Master Servicer or the Special
Servicer) acceptable to and delivered to the Trustee or the Master Servicer, as
the case may be except that any opinion of counsel relating to (a) the
qualification of REMIC I or REMIC II as a REMIC; (b) the qualification of the
Grantor Trust as a grantor trust; (c) compliance with REMIC provisions or (d)
the resignation of the Master Servicer, Special Servicer or Depositor pursuant
to Section 6.04 must be an opinion of counsel who is in fact Independent of the
Master Servicer, the Special Servicer or the Depositor; as applicable.
"Original Class Principal Balance": With respect to any Class of
REMIC II Regular Interests (other than the Class IO Certificates) and the Class
A-2F Certificates, the initial Class Principal Balance thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"Original Class IO-I Notional Amount": $392,483,618.
"Original Class IO-II Notional Amount": $216,976,777.
"Original Class IO-III Notional Amount": $915,795,110.
"Original Notional Amount": The original Class IO-I Notional Amount,
the original Class IO-II Notional Amount and the original Class IO-III Notional
Amount.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date,
5.71100% per annum;
(ii) the Class A-2 Certificates for any Distribution Date,
6.13600% per annum;
(iii) the Class A-2F Regular Interest for any Distribution Date,
6.13600% per annum;
(iv) the Class A-2F Certificates for any Distribution Date, LIBOR
plus 0.43% per annum;
(v) the Class B Certificates for any Distribution Date, 6.31500%
per annum;
(vi) the Class C Certificates for any Distribution Date, 6.40300%
per annum;
(vii) the Class D Certificates for any Distribution Date, 6.48400%
per annum;
(viii) the Class E Certificates for any Distribution Date, 6.62400%
per annum;
(ix) the Class F Certificates for any Distribution Date, 6.83800%
per annum;
(x) the Class G Certificates for any Distribution Date, 6.93600%
per annum;
(xi) the Class H Certificates for any Distribution Date, 7.03900%
per annum;
(xii) the Class J Certificates for any Distribution Date, 6.00000%
per annum;
(xiii) the Class K Certificates for any Distribution Date, 6.00000%
per annum;
(xiv) the Class L Certificates for any Distribution Date, 6.00000%
per annum;
(xv) the Class M Certificates for any Distribution Date, 6.00000%
per annum;
(xvi) the Class N Certificates for any Distribution Date, 6.00000%
per annum;
(xvii) the Class O Certificates for any Distribution Date, 6.00000%
per annum;
(xviii) the Class P Certificates for any Distribution Date, 6.00000%
per annum
(xix) the Class Q Certificates for any Distribution Date, 6.00000%
per annum
(xx) the Class IO-I Certificates for the initial Distribution
Date, 0.93638% per annum, and for any subsequent
Distribution Date, the weighted average of the Class IO-I
Strip Rates for the respective Group 1-I Components for such
Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding
immediately prior to such Distribution Date);
(xxi) the Class IO-II Certificates for the initial Distribution
Date, 2.00184% per annum, and for any subsequent
Distribution Date, the weighted average of the Class IO-II
Strip Rates for the respective Group 1-II Components for
such Distribution Date (weighted on the basis of the
respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date);
and
(xxii) the Class IO-III Certificates for the initial Distribution
Date, 2.04306% per annum, and for any subsequent
Distribution Date, the weighted average of the Class IO-III
Strip Rates for the respective Group 2 Components for such
Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding
immediately prior to such Distribution Date).
"Paying Agent": The paying agent appointed pursuant to Section 8.13.
If no such paying agent has been appointed or if such paying agent has been so
appointed, but the Trustee shall have terminated such appointment, then the
Trustee shall be the Paying Agent.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or successor
REO Loan), any amounts collected thereon, other than late payment charges,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges, that
represent penalty interest (arising out of a default) in excess of interest on
the Stated Principal Balance of such Mortgage Loan (or successor REO Loan)
accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificates or
Class A-2F Certificates, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Original Class Principal Balance or
Original Notional Amount, as the case may be, of the relevant Class. With
respect to a Residual Certificate, the percentage interest in distributions to
be made with respect to the relevant Class, as stated on the face of such
Certificate.
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee
if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not more
than 365 days), provided such obligations are backed by the full faith and
credit of the United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change or be liquidated prior to maturity.
Interest may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(ii) repurchase obligations with respect to any security described
in clause (i) above (having original maturities of not more than 365 days),
provided that the short-term deposit or debt obligations, of the party
agreeing to repurchase such obligations are rated in the highest rating
categories of each of Moody's and Fitch or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under the laws
of the United States or any state thereof (having original maturities of
not more than 365 days), the short term obligations of which are rated in
the highest rating categories of each of Moody's and Fitch or such lower
rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by
the Rating Agencies. In addition, its terms should have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change. In addition, its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof (or if not so incorporated, the commercial
paper is United States Dollar denominated and amounts payable thereunder
are not subject to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest rating category of each of
Moody's and Fitch or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies. The commercial paper by its
terms must have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change. Interest may either by fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that index;
(v) units of money market funds that maintain a constant asset value
and which are rated in the highest applicable rating category by each of
Moody's and Fitch (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to
the Certificates, as evidenced in writing by the Rating Agencies). In
addition, its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in writing by
each Rating Agency to the Master Servicer, the Special Servicer and the
Trustee;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization, a Plan or a Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I or REMIC II, the Holder of Certificates holding the largest Percentage
Interest of the related Class of Residual Certificates.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of the related Master Servicing Fee and if applicable, the Additional
Interest) accrued on the amount of such Principal Prepayment during the period
from and after such Due Date and ending on the date such Principal Prepayment
was applied to such Mortgage Loan, to the extent collected (exclusive of any
related Prepayment Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in part during
any Collection Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection Period, the
amount of interest, to the extent not collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Trustee and the Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following: (a) the aggregate of the principal
portions of all Scheduled Payments (other than Balloon Payments) and any Assumed
Scheduled Payments due or deemed due in respect of the Mortgage Loans for their
respective Due Dates occurring during the related Collection Period, to the
extent not previously received or advanced with respect to a Distribution Date
prior to the related Collection Period; (b) the aggregate of all Principal
Prepayments received on the Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related Stated Maturity
Date occurred during or prior to the related Collection Period, any payment of
principal (other than a Principal Prepayment) made by or on behalf of the
related Mortgagor during the related Collection Period (including any Balloon
Payment), net of any portion of such payment that represents a recovery of the
principal portion of any Scheduled Payment (other than a Balloon Payment) due,
or the principal portion of any Assumed Scheduled Payment deemed due, in respect
of such Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered; (d) the aggregate of the principal portion
of all Liquidation Proceeds, Insurance Proceeds and, to the extent not otherwise
included in clause (a), (b) or (c) above, payments that were received on the
Mortgage Loans during the related Collection Period and that were identified and
applied by the Master Servicer and/or Special Servicer as recoveries of
principal of such Mortgage Loans, in each case net of any portion of such
amounts that represents a recovery of the principal portion of any Scheduled
Payment (other than a Balloon Payment) due, or of the principal portion of any
Assumed Scheduled Payment deemed due, in respect of the related Mortgage Loan on
a Due Date during or prior to the related Collection Period and not previously
recovered; (e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments deemed due in respect of
the related REO Loans for their respective Due Dates occurring during the
related Collection Period; (f) with respect to any REO Properties, the aggregate
of all Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and that
were identified and applied by the Master Servicer and/or Special Servicer as
recoveries of principal of the related REO Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion of
any Scheduled Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Scheduled Payment deemed due, in respect of the related
REO Loan or the predecessor Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and (g) if such
Distribution Date is subsequent to the initial Distribution Date, the excess, if
any, of the Principal Distribution Amount for the immediately preceding
Distribution Date, over the aggregate distributions of principal made on the
Sequential Pay Certificates on such immediately preceding Distribution Date
pursuant to Section 4.01.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer out of
certain related recoveries pursuant to the third paragraph of Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set forth
in the third paragraph of Section 3.11(c), 1.00%.
"Privileged Person": Any Certificateholder, Certificate Owner, any
Person identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
any Mortgage Loan Seller, either Underwriter or any party hereto; provided that
no Certificate Owner or prospective transferee of a Certificate or interest
therein shall be considered a "Privileged Person" or be entitled to a password
or restricted access as contemplated by Section 3.15 unless such Person has
delivered to the Trustee or the Master Servicer, as applicable, a certification
in the form of Exhibit X-1 or Exhibit X-2, as applicable.
"Proposed Successor": As defined in Section 6.04.
"Prospectus": The prospectus dated March 12, 2001, as supplemented
by the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated March
22, 2001 of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
"PTE 95-60": As defined in Section 5.02(c).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to the First Union Mortgage Loan
Purchase Agreement or the Bank of America Mortgage Loan Purchase Agreement, as
applicable, by the Majority Subordinate Certificateholder pursuant to Section
3.18(b), by the Master Servicer or the Special Servicer pursuant to Section
3.18(c), or by the Special Servicer, the Majority Subordinate Certificateholder
or the Master Servicer pursuant to Section 9.01 or to be otherwise sold pursuant
to Section 3.18(d), a cash price equal to the outstanding principal balance of
such Mortgage Loan (or REO Loan) as of the date of purchase, together with (a)
all accrued and unpaid interest on such Mortgage Loan (or REO Loan) at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase plus any accrued interest on P&I Advances made with respect to such
Mortgage Loan, (b) all related and unreimbursed Servicing Advances plus any
accrued and unpaid interest thereon, (c) any reasonable costs and expenses,
including, but not limited to, the cost of any enforcement action, incurred by
the Master Servicer, the Special Servicer or the Trust Fund in connection with
any such purchase by a Mortgage Loan Seller (to the extent not included in
clause (b) above) and (d) any other Additional Trust Fund Expenses in respect of
such Mortgage Loan; provided, that the Purchase Price shall not be reduced by
any outstanding P&I Advance.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A2" by
▇▇▇▇▇'▇ and "A" by Fitch (or the obligations of which are guaranteed or backed
by a company having such a claims paying ability) and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a claims
paying ability rated no lower than two rating categories (without regard to
pluses or minuses or numerical qualifications) below the rating assigned to the
then highest rated outstanding Certificate, (or, with respect to the required
Fitch rating, if not rated by Fitch, then at least "A" by two other nationally
recognized statistical rating organizations (which may include ▇▇▇▇▇'▇)) but in
no event lower than "A2" by ▇▇▇▇▇'▇ and "A" by Fitch (or if not rated by Fitch
then at least "A" by two other nationally recognized statistical rating
organizations (which may include ▇▇▇▇▇'▇)) or, in the case of clauses (i) and
(ii), such other rating as each Rating Agency shall have confirmed in writing
will not cause such Rating Agency to downgrade, qualify or withdraw the
then-current rating assigned to any of the Certificates that are then currently
being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) have a remaining term to stated maturity not greater than,
and not more than two years less than, the remaining term to stated maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of the original Loan-to-Value Ratio of the deleted Mortgage Loan and a
current Loan-to-Value Ratio not higher than the then current Loan-to-Value Ratio
of the deleted Mortgage Loan; (vii) comply as of the date of substitution with
all of the representations and warranties set forth in the First Union Mortgage
Loan Purchase Agreement or the Bank of America Mortgage Loan Purchase Agreement,
as applicable; (viii) have an Environmental Assessment that indicates no adverse
environmental conditions with respect to the related Mortgaged Property and
which will be delivered as a part of the related Mortgage File; (ix) have an
original Debt Service Coverage Ratio of not less than the original Debt Service
Coverage Ratio of the deleted Mortgage Loan and a current Debt Service Coverage
Ratio of not less than the current Debt Service Coverage Ratio of the deleted
Mortgage Loan; (x) be determined by an Opinion of Counsel (at the applicable
Mortgage Loan Seller's expense) to be a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; (xi) not have a maturity date
after the date two years prior to the Rated Final Distribution Date; (xii) not
be substituted for a deleted Mortgage Loan unless the Trustee has received prior
confirmation in writing by each Rating Agency that such substitution will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any Class of Certificates then rated by the Rating Agency
(the cost, if any, of obtaining such confirmation to be paid by the Mortgage
Loan Seller); (xiii) have a date of origination that is not more than 12 months
prior to the date of substitution; (xiv) have been approved by the Controlling
Class Representative (or, if there is no Controlling Class Representative then
serving, by the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), which approval may not be
unreasonably withheld or delayed; and (xv) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
of the REMICs established under this Agreement or the imposition of tax on any
of such REMICs other than a tax on income expressly permitted or contemplated to
be received by the terms of this Agreement, as determined by an Opinion of
Counsel (at the applicable Mortgage Loan Seller's expense). In the event that
one or more mortgage loans are substituted for one or more deleted Mortgage
Loans, then the amounts described in clause (i) shall be determined on the basis
of aggregate principal balances and the rates described in clause (ii) above and
the remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. When a Qualified Substitute Mortgage
Loan is substituted for a deleted Mortgage Loan, the applicable Mortgage Loan
Seller shall certify that the Mortgage Loan meets all of the requirements of the
above definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in March
2033, the first Distribution Date after the 24th month following the end of the
amortization term for the Mortgage Loan that, as of the Cut-off Date, has the
longest remaining amortization term.
"Rating Agency": Each of ▇▇▇▇▇'▇ and Fitch.
"Rating Agency Trigger Event": The reduction of the Swap
Counterparty's long-term or short-term ratings below "Aa3" or "P-1",
respectively, by ▇▇▇▇▇'▇ or "AA-" or "F-1", respectively, by Fitch.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive of any portion
thereof that constitutes default interest in excess of the Mortgage Rate,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges), plus (c)
to the extent not included in (a) above, any related unreimbursed Servicing
Advances as of the commencement of the Collection Period in which the Final
Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (d) all payments and
proceeds, if any, received in respect of such Mortgage Loan or the REO Property
that relates to such REO Loan, as the case may be, during the Collection Period
in which such Final Recovery Determination was made; (2) each defaulted Mortgage
Loan as to which any portion of the principal or previously accrued interest
(other than Additional Interest and Penalty Interest) payable thereunder was
canceled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20, the
amount of such principal and/or interest so canceled; and (3) each Mortgage Loan
as to which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Periodic Payment due thereon (each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Periodic Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class A-2F,
Class B, Class C, Class D, Class E or Class F Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and, consisting
of: (i) all of the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received
after the Closing Date (excluding all Additional Interest on such Mortgage
Loans), together with all documents included in the related Mortgage Files and
any related Escrow Payments and Reserve Funds; (ii) all amounts held from time
to time in the Collection Account, the Interest Reserve Account, any REO Account
and, to the extent related to REMIC I, the Distribution Account; (iii) any REO
Property acquired in respect of such a Mortgage Loan; (iv) the rights of the
Depositor under Sections 2, 3, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of each of
the First Union Mortgage Loan Purchase Agreement and the Bank of America
Mortgage Loan Purchase Agreement with respect to such Mortgage Loans; and (v)
the rights of the mortgagee under all Insurance Policies with respect to such
Mortgage Loans.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the amount set forth below. As of any Determination Date after the Closing Date,
the percentage set forth below for each REMIC I Regular Interest of the Class
Principal Balance of each Class of Corresponding Certificates. On each
Distribution Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
Corresponding Corresponding REMIC Initial REMIC I REMIC I Principal
Certificates I Regular Interest Principal Balance Percentage
Class A-1 LA-1-1 $50,167,200.00 30%
LA-1-2 $117,056,800.00 70%
Class A-2 LA-2-1A $65,441,722.50 8.25%
LA-2-1BI $86,264,088.75 10.875%
LA-2-IBII $86,264,088.75 10.875%
LA-2-2 $555,263,100.00 70%
Class A-2F LA-2F-1A $4,950,000.00 8.25%
LA-2F-1BI $6,525,000.00 10.875%
LA-2F-1BII $6,525,000.00 10.875%
LA-2F-2 $42,000,000.00 70%
Class B LB-1I $7,849,650.00 15%
LB-1II $7,849,650.00 15%
LB-2 $36,631,700.00 70%
Class C LC-1I $3,924,900.00 15%
LC-1II $3,924,900.00 15%
LC-2 $18,316,200.00 70%
Class D LD-1I $3,924,750.00 15%
LD-1II $3,924,750.00 15%
LD-2 $18,315,500.00 70%
Class E LE-1 $4,906,200.00 0.30%
LE-2 $11,447,800.00 0.70%
Class F LF-1 $3,924,600.00 0.30%
LF-2 $9,157,400.00 0.70%
Class G LG-1 $7,849,800.00 0.30%
LG-2 $18,316,200.00 0.70%
Class H LH-1 $4,906,200.00 0.30%
LH-2 $11,447,800.00 0.70%
Class J LJ-1 $5,887,200.00 0.30%
LJ-2 $13,736,800.00 0.70%
Class K LK-1 $4,905,900.00 0.30%
LK-2 $11,447,100.00 0.70%
Class L LL-1 $3,924,900.00 0.30%
LL-2 $9,158,100.00 0.70%
Class M LM-1 $1,962,300.00 0.30%
LM-2 $4,578,700.00 0.70%
Class N LN-1 $2,943,600.00 0.30%
LN-2 $6,868,400.00 0.70%
Class O LO-1 $3,924,900.00 0.30%
LO-2 $9,158,100.00 0.70%
Class P LP-1 $1,962,600.00 0.30%
LP-2 $4,579,400.00 0.70%
Class Q LQ-1 $7,849,718.40 0.30%
LQ-2 $18,316,009.60 0.70%
"REMIC I Principal Percentage": With respect to any REMIC I Regular
Interest, the percentage of the Certificate Principal Balance of the Class of
Corresponding Certificates set forth in the definition of "REMIC I Principal
Balance."
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to REMIC I Regular Interests
▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇▇, ▇▇-▇-▇, ▇▇-▇▇-▇▇, ▇▇-▇▇-▇, ▇▇-▇, LC-2, LD-2, LE-1,
LE-2, LF-1, LF-2, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇,
▇▇-▇, LM-2, LN-1, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇ and LQ-2, the Weighted
Average Net Mortgage Rate. With respect to REMIC I Regular Interests LA-2-1BI,
LA-2F-1BI, LB-1I, LC-1I, LD-1I, (i) for any Distribution Date occurring on or
before the Class IO-II Termination Date, 0% per annum, and (ii) for any
Distribution Date occurring after the Class IO-II Termination Date, two times
the Weighted Average Net Mortgage Rate. With respect to REMIC I Regular
Interests ▇▇-▇-▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇-▇▇▇, LC-1II and LD-1II, (i) for any
Distribution Date occurring on or before the Class IO-II Termination Date, the
Weighted Average Net Mortgage Rate and (ii) for any Distribution Date occurring
after the Class IO-II Termination Date, 0% per annum.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time, to the extent
related to REMIC II, in the Distribution Account conveyed in trust to the
Trustee for the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section 2.05, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class IO, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class Q or Class R-II Certificate.
"REMIC II Regular Interest": The Class A-2F Regular Interest and any
Class of REMIC II Certificates other than a Class R-II Certificate.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "First
Union National Bank, as Special Servicer, in trust for registered holders of
First Union National Bank - Bank of America, N.A. Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of REMIC I
and deemed to provide for Periodic Payments of principal and/or interest equal
to its Assumed Scheduled Payment and otherwise to have the same terms and
conditions as its predecessor Mortgage Loan (such terms and conditions to be
applied without regard to the default on such predecessor Mortgage Loan and the
acquisition of the related REO Property as part of the Trust Fund). Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of its predecessor Mortgage Loan as of the date of the
related REO Acquisition. All Scheduled Payments (other than a Balloon Payment),
Assumed Scheduled Payments (in the case of a Balloon Mortgage Loan delinquent in
respect of its Balloon Payment) and other amounts due and owing, or deemed to be
due and owing, in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, shall be deemed to continue to be due and owing in
respect of an REO Loan. Collections in respect of each REO Loan (after provision
for amounts to be applied to the payment of, or to be reimbursed to the Master
Servicer, the Special Servicer, or the Trustee for the payment of, the costs of
operating, managing, selling, leasing and maintaining the related REO Property
or for the reimbursement of the Master Servicer, the Special Servicer, or the
Trustee for other related Servicing Advances as provided in this Agreement)
shall be treated: first, as a recovery of accrued and unpaid interest on such
REO Loan at the related Mortgage Rate to but not including the Due Date in the
Collection Period of receipt (exclusive of any portion thereof that constitutes
Additional Interest); second, as a recovery of principal of such REO Loan to the
extent of its entire unpaid principal balance; and third, in accordance with the
normal servicing practices of the Master Servicer, as a recovery of any other
amounts due and owing in respect of such REO Loan, including, without
limitation, (i) Yield Maintenance Charges, Prepayment Premiums and Penalty
Interest and (ii) Additional Interest and other amounts, in that order.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Servicing Advances
and P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer or the Trustee in respect of such Servicing
Advances and P&I Advances in accordance with Sections 3.03(d) and 4.03(d), shall
continue to be payable or reimbursable to the Master Servicer, the Special
Servicer or the Trustee, as the case may be, in respect of an REO Loan pursuant
to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially in the form of and
containing the information described in Exhibit O attached hereto, or in such
other form for the presentation of such information as may be recommended by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "REO Status Report" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Special Servicer and setting forth with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Determination Date immediately preceding the preparation of
such report, among other things, (i) the acquisition date of such REO Property,
(ii) the amount of income collected with respect to such REO Property (net of
related expenses) and other amounts, if any, received on such REO Property
during the related Collection Period and (iii) the value of the REO Property
based on the most recent appraisal or other valuation thereof available to the
Special Servicer as of such Determination Date (including any prepared
internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 CFR ss.225.62 and conducted in accordance with the standards of the
Appraisal Institute.
"Required Appraisal Date": With respect to any Required Appraisal
Mortgage Loan, the earliest date on which any of the items specified in clauses
(i) through (vi) of the definition of Required Appraisal Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is
sixty (60) days or more delinquent in respect of any Periodic Payments, (ii)
that becomes an REO Loan, (iii) that has been modified by the Special Servicer
to reduce the amount of any Periodic Payment (other than a Balloon Payment),
(iv) with respect to which a receiver is appointed and continues in such
capacity in respect of the related Mortgaged Property, (v) with respect to which
a Mortgagor declares bankruptcy or with respect to which the related Mortgagor
is subject to a bankruptcy proceeding or (vi) with respect to which any Balloon
Payment on such Mortgage Loan has not been paid by its scheduled maturity date;
provided, however, that a Required Appraisal Mortgage Loan will cease to be a
Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive full and
timely Periodic Payments under the terms of such Mortgage Loan (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20); and
(b) with respect to the circumstances described in clauses (iv), (v)
and (vi) above, when such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the Servicing
Standard, but, with respect to any bankruptcy or insolvency proceedings
described in clauses (iv) and (v), no later than the entry of an order or decree
dismissing such proceeding, and with respect to the circumstances described in
clause (vi) above, no later than the date that the Special Servicer agrees to an
extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Required Appraisal Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of the
Mortgaged Property related to the subject Required Appraisal Mortgage Loan as
determined by a Required Appraisal or letter update or internal valuation if
applicable, and provided further that for purposes of determining any Appraisal
Reduction Amount in respect of such Required Appraisal Mortgage Loan, such
Appraisal Reduction Amount shall be amended annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
or internal valuation, if applicable of a Required Appraisal conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves, inter alia, for environmental remediation,
repairs, capital improvements, tenant improvements and/or leasing commissions
with respect to the related Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee any officer or assistant officer in the Corporate Trust Services Group
of the initial Trustee and (ii) any successor Trustee, any officer or assistant
officer in the Corporate Trust Department of the Trustee, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Servicer Reports": Each of the Watch List, Operating
Statement Analysis, NOI Adjustment Worksheet and Comparative Financial Status
Report.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 or acceleration of principal by reason of default, and assuming that each
prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Interest": Any Class A-1, Class A-2 or Class IO Certificate
and the Class A-2F Regular Interest.
"Sequential Pay Certificates": Any 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, Class K,
Class L, Class M, Class N, Class O, Class P or Class Q Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by or on behalf of the Master Servicer,
the Special Servicer or the Trustee in connection with the servicing of a
Mortgage Loan, or in connection with the administration of any REO Property,
including, but not limited to, the cost of (a) compliance with the obligations
of the Master Servicer and the Special Servicer, if any, set forth in Section
3.02(d) and Section 3.03(c), (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, including the cost of any
"forced placed" insurance policy purchased by the Master Servicer to the extent
such cost is allocable to a particular Mortgaged Property that the Master
Servicer or the Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds or any Liquidation
Proceeds of the nature described in clauses (i)-(v) of the definition of
"Liquidation Proceeds," (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including, without limitation, foreclosures, (e) any
Required Appraisal or other appraisal expressly required or permitted to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, including, without limitation, appraisals and compliance
with Section 3.16(a) (to the extent not covered by available funds in the REO
Account) and Section 3.20(h) (to the extent not paid by the related Mortgagor)
and (g) compliance with the obligations of the Master Servicer or the Trustee
set forth in Section 2.03(a) or (b). Notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses or costs and expenses incurred by any such
party in connection with its purchase of a Mortgage Loan or REO Property, or
costs or expenses expressly required to be borne by the Master Servicer or
Special Servicer without reimbursement pursuant to the terms hereof.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan (a) the Stated Principal Balance of such
Mortgage Loan, as of the end of the immediately preceding Collection Period and
(b) the difference between the Master Servicing Fee Rate for such Mortgage Loan
over the servicing fee rate (if any) applicable to such Mortgage Loan as
specified in any Sub-Servicing Agreement related to such Mortgage Loan.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to the
origination and servicing of any Mortgage Loan or which are reasonably required
for the ongoing administration of the Mortgage Loan, including appraisals,
surveys, engineering reports, environmental reports, financial statements,
leases, rent rolls and tenant estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration of the
Mortgage Loans for which it is responsible hereunder (a) in the same manner in
which, and with the same care, skill, prudence and diligence with which, the
Master Servicer or the Special Servicer, as the case may be, generally services
and administers similar mortgage loans with similar borrowers (i) for other
third-parties, giving due consideration to customary and usual standards of
practice of prudent institutional commercial mortgage lenders servicing their
own loans or (ii) held in its own portfolio, whichever standard is higher, (b)
with a view to the maximization of the recovery on such Mortgage Loan on a net
present value basis and the best interests of the Certificateholders and the
Trust, and (c) without regard to (i) any relationship that the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof may have
with the related Mortgagor, the Depositor, any Mortgage Loan Seller or any other
party to the transaction; (ii) the ownership of any Certificate by the Master
Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof; (iii) the right of the Master Servicer or the Special Servicer, as the
case may be, to receive compensation or other fees for its services rendered
pursuant to this Agreement; (iv) the obligations of the Master Servicer to make
Advances; (v) the ownership, servicing or management by the Master Servicer or
the Special Servicer or any Affiliate thereof for others of any other mortgage
loans or mortgaged property; (vi) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to repurchase or substitute a Mortgage Loan as
a Mortgage Loan Seller; (vii) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to cure a breach of a representation and
warranty with respect to a Mortgage Loan; and (viii) any debt the Master
Servicer or Special Servicer or any Affiliate of either has extended to any
Mortgagor.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of REMIC II Regular Interests evidencing a $1,000
denomination.
"Special Servicer": First Union National Bank, or any successor
special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events have occurred:
(a) the related Mortgagor shall have failed to make any Periodic
Payment, and such failure has continued unremedied for 60 days (or, in the case
of a Balloon Payment, if the Master Servicer receives written evidence from an
institutional lender of such lender's binding commitment to refinance such
Mortgage Loan and the related Mortgagor continues to make Periodic Payments of
principal and interest in an amount at least equal to the Periodic Payment due
on the Due Date immediately preceding the scheduled maturity date, such longer
period (not to exceed 120 days) within which such refinancing is expected to
occur); or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the related Mortgagor, that a
default in making a Periodic Payment is likely to occur within 30 days and is
likely to remain unremedied for at least 60 days (or, in the case of a Balloon
Payment, if the Master Servicer has received written evidence from an
institutional lender of such lender's binding commitment to refinance such
Mortgage Loan and if the Master Servicer reasonably expects the related
Mortgagor to continue to make Periodic Payments of principal and interest in an
amount at least equal to the Periodic Payment due on the Due Date immediately
preceding the scheduled maturity date, such longer period (not to exceed 120
days) within which such refinancing is expected to occur); or
(c) there shall have occurred a default (other than as described in
clause (a) above) that the Master Servicer shall have determined, in its good
faith and reasonable judgement, materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan or otherwise materially adversely
affects the interests of Certificateholders and that continues unremedied for
the applicable grace period under the terms of the Mortgage Loan (or, if no
grace period is specified, for 60 days, provided, that a default that gives rise
to an acceleration right without any grace period shall be deemed to have a
grace period equal to zero); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
related Mortgagor; provided that if such decree or order is discharged,
dismissed or stayed within 60 days it shall not be a Special Serviced Mortgage
Loan (and no Special Servicer Fees shall be payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided, further, however, that a Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan:
(i) with respect to the circumstances described in clause (a) above,
when the related Mortgagor has made three consecutive full and timely
Periodic Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant
to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, when such circumstances cease to exist in the good
faith reasonable judgment of the Special Servicer and in accordance with
the Servicing Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan and provided no additional default is
foreseeable in the reasonable good faith judgment of the Special Servicer.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York and
North Carolina and by any other state or local taxing authorities as may, by
notice to the Trustee, assert jurisdiction over the trust fund or any portion
thereof, or which, according to an Opinion of Counsel addressed to the Trustee,
have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Balance of
such Mortgage Loan (or, in the case of a Qualified Substitute Mortgage Loan, the
unpaid principal balance after application of all principal payments due on or
before the related date of substitution, whether or not received), plus (y) any
Mortgage Deferred Interest added to the principal balance of such Mortgage Loan
on or before the end of the immediately preceding Collection Period minus (z)
the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received
from the Mortgagor or advanced by the Servicer and
distributed to Certificateholders on or before such date of
determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent
distributed to Certificateholders on or before such date of
determination;
(iii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds received with respect to such Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
and
(iv) any amount of reduction in the outstanding principal balance
of such Mortgage Loan resulting from a Deficient Valuation
that occurred prior to the end of the Collection Period for
the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to the predecessor Mortgage Loan on or after the date of the
related REO Acquisition, to the extent distributed to
Certificateholders on or before such date of determination;
and
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Revenues received with respect to such REO
Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances of the related Qualified Substitute
Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Contract": The ISDA Master Agreement and Schedule to the
Master Agreement, dated as of March 22, 2001, by and among the Swap Counterparty
and the Trustee, solely in its capacity as Trustee of the Trust Fund.
"Swap Documents": The Swap Contract and the related Confirmation
for U.S. Dollar Interest Rate Swap Transaction dated as of March 30, 2001.
"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 (q)
of the Schedule to the related ISDA Master Agreement.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Temporary
Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable State and Local Tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC II, and (ii) the Grantor Trust Assets.
"Trustee": ▇▇▇▇▇ Fargo Bank Minnesota, N.A., its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan, and each REO Loan
for any Distribution Date, an amount equal to one month's interest for the most
recently ended calendar month (calculated on a 30/360 Basis), accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage Loan, or REO
Loan, as the case may be, outstanding immediately following the prior
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Trustee Fee Rate": 0.0022% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the related
REMIC I Remittance Rate for such Distribution Date, accrued on the REMIC I
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to such Distribution Date and, to the extent permitted under applicable law,
also on any Uncertificated Accrued Interest in respect of such REMIC I Regular
Interest from the prior Distribution Dates that was not previously deemed paid.
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest shall
accrue on a 30/360 Basis and, with respect to any REMIC I Regular Interest for
any Distribution Date, shall be deemed to accrue during the calendar month
preceding the month in which such Distribution Date occurs.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, 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.
"Underwriter": Each of Banc of America Securities, First Union
Securities or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. or, in each case, its successor in
interest.
"United States Person": A citizen or resident of the United States,
a corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, Historical Loan Modification Report, Historical Liquidation Report,
Interim Delinquent Loan Status Report, REO Status Report and Updated Collection
Report.
"Updated Collection Report": A report substantially containing the
content described in Exhibit AA attached hereto and available each month on the
P&I Advance Date, setting forth each Mortgage Loan or REO Loan with respect to
which the Master Servicer received a Periodic Payment after the Determination
Date and before the P&I Advance Date for the related month.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Sequential Pay Certificates. 96% of the Voting Rights shall be
allocated among 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, Class K, Class L, Class M, Class N
and Class O Certificates in proportion to the respective Class Principal
Balances of their Certificates; provided that, solely for the purpose of
determining the Voting Rights of the Classes of Sequential Pay Certificates, the
aggregate Appraisal Reduction Amount (determined as set forth herein) shall be
treated as Realized Losses with respect to the calculation of the Certificate
Principal Balances thereof; provided, further, however, that the aggregate
Appraisal Reduction Amount shall not reduce the Class Principal Balance of any
Class for purposes of determining the Controlling Class, the Controlling Class
Representative or the Majority Subordinate Certificateholder. Four percent in
the aggregate of the Voting Rights shall be allocated to the Class IO
Certificates (allocated, pro rata, among the Class IO-I, Class IO-II and Class
IO-III Certificates based upon their Notional Amounts). The Residual
Certificates shall have no voting rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in standard
proportion to the Percentage Interests evidenced by their respective
Certificates. In addition, if either the Master Servicer or the Special Servicer
is the holder of any Certificate, neither of the Master Servicer or Special
Servicer, in its capacity as a Certificateholder, shall have Voting Rights with
respect to matters concerning compensation affecting the Master Servicer or the
Special Servicer.
"Watch List": As of each Determination Date a report, substantially
in the form of Exhibit P attached hereto (or such other form for the
presentation of such information as may be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for below,
is reasonably acceptable to the Master Servicer), identifying each Mortgage Loan
that is not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage
Ratio of less than 1.05x, other than Mortgage Loans whose operations results for
the first year of operations represent less than seven months of operating
history, (ii) that has a Stated Maturity Date occurring in the next ninety days,
(iii) that is delinquent in respect of its real estate taxes, (iv) for which any
outstanding Advance exists and has been outstanding for 30 days or more, (v)
that has been a Specially Serviced Mortgage Loan in the past 90 days, (vi) for
which the Debt Service Coverage Ratio has decreased by more than 10% in the
prior 12 months and is less than 1.40x, (vii) for which any lease relating to
more than 25% of the rentable area of the related Mortgaged Property has
expired, been terminated, is in default, has gone dark or will expire within the
next three months (without being replaced by one or more tenants or leases),
(viii) that is late in making its Periodic Payment three or more times in the
preceding twelve months, (ix) with material deferred maintenance at the related
Mortgaged Property or (x) that is 30 or more days delinquent; provided that a
Mortgage Loan will not be identified on the Watch List solely because the
related borrower has failed to deliver operating statements, rent rolls or other
financial statements required to be delivered under the Mortgage Loan documents.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective Net
Mortgage Rates applicable to the Mortgage Loans as of the first day of the
related Collection Period, weighted on the basis of their respective Stated
Principal Balances immediately following the preceding Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer shall be required to follow the terms and
provisions contained in the applicable Mortgage Note, provided, however, in the
event the particular Mortgage Note shall not specify the U.S. Treasuries which
shall be used in determining the discount rate or the reinvestment yield to be
applied in such calculation, the Master Servicer shall be required to use those
U.S. Treasuries having maturity dates most closely approximating the maturity of
such Mortgage Loan. Accordingly if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in The Wall Street Journal on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12X {(1+"BEY"/2)^1/6}-1) where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X {(1+ .055/2)^0.16667}-1) where
.055 is the decimal version of the percentage 5.5% and 0.16667 is the decimal
version of the exponential power. The MEY in the above calculation is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
----------------------------
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) with respect to the Class A-2F
Certificates, the Swap Documents and the Class A-2F Regular Interest, (iii) the
rights of the Depositor under Sections 2, 3, 9, 10, 11, 12, 13, 14, 15, 16 and
17 of each of the First Union Mortgage Loan Purchase Agreement and the Bank of
America Mortgage Loan Purchase Agreement (iv) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans and due after
the Cut-off Date. The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 11.07, is
intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to the First
Union Mortgage Loan Purchase Agreement and the Bank of America Mortgage Loan
Purchase Agreement, as applicable, to deliver to and deposit with, or cause to
be delivered to and deposited with, the Trustee or a Custodian appointed thereby
(with a copy to the Master Servicer), on or before the Closing Date, the
Mortgage File for each Mortgage Loan so assigned. The Special Servicer may
request the Master Servicer to deliver a copy of the Servicing File for any
Mortgage Loan (other than a Specially Serviced Mortgage Loan) at the expense of
the Special Servicer. None of the Trustee, any Custodian, the Master Servicer or
the Special Servicer shall be liable for any failure by any Mortgage Loan Seller
or the Depositor to comply with the document delivery requirements of the First
Union Mortgage Loan Purchase Agreement, the Bank of America Mortgage Loan
Purchase Agreement and this Section 2.01(b).
Under the applicable Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller will be required to take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Mortgage Loan Seller which secure any
Mortgage Loan.
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File", with evidence of recording thereon,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, the delivery
requirements of the First Union Mortgage Loan Purchase Agreement or the Bank of
America Mortgage Loan Purchase Agreement, as applicable, and Section 2.01(b)
shall be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by the applicable Mortgage Loan
Seller to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date, and either the original of such non-delivered document
or instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 120 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, in good faith, attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi) (if recorded) and (viii) of the definition of
"Mortgage File," with evidence of recording thereon, for any other reason,
including, without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of the First Union Mortgage Loan
Purchase Agreement or the Bank of America Mortgage Loan Purchase Agreement, as
applicable, and Section 2.01(b) shall be deemed to have been satisfied as to
such non-delivered document or instrument and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (with evidence of
recording thereon) is delivered to the Trustee or a Custodian appointed thereby
on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and recordable form any one of
the assignments in favor of the Trustee referred to in clause (iv) or (v) of the
definition of "Mortgage File", the applicable Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related First Union
Mortgage Loan Purchase Agreement or Bank of America Mortgage Loan Purchase
Agreement, as applicable, and Section 2.01(b) by delivering with respect to such
Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan;
provided that all required original assignments with respect to such Mortgage
Loan in fully complete and recordable form shall be delivered to the Trustee or
its Custodian within 120 days of the Closing Date (or within such longer period
as the Trustee in its discretion may permit).
(d) With respect to the First Union Mortgage Loans, the Trustee
shall, for a fee paid to the Trustee by the Depositor on the Closing Date as to
each First Union Mortgage Loan, promptly (and in any event within 90 days
following the later of the Closing Date or the delivery of all assignments and
UCC Financing Statements to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate and to the extent timely
delivered to the Trustee in final, recordable form, each assignment of Mortgage,
assignment of Assignment of Leases and any other recordable documents (to the
extent the Trustee has actual knowledge that such documents are to be recorded)
relating to the First Union Mortgage Loan, in favor of the Trustee referred to
in clause (iv) of the definition of "Mortgage File" and each UCC-2 and UCC-3
assignment in favor of the Trustee and so delivered to the Trustee and referred
to in clause (viii) of the definition of "Mortgage File." Each such assignment,
UCC-2 and UCC-3 shall reflect that the recorded original should be returned by
the public recording office to the Trustee or its designee following recording,
and each such UCC-2 and UCC-3 assignment shall reflect that the file copy
thereof should be returned to the Trustee or its designee following filing;
provided, that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases, the
Trustee shall obtain therefrom a certified copy of the recorded original, at the
expense of the Depositor. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall within 30 days of its knowledge thereof direct First Union as a
Mortgage Loan Seller pursuant to the First Union Mortgage Loan Purchase
Agreement promptly to prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the Trustee shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate. On
a monthly basis, the Trustee shall forward to the Master Servicer a copy of each
of the aforementioned recorded assignments following the Trustee's receipt
thereof, to the extent not previously provided.
With respect to the Bank of America Mortgage Loans, Bank of America
as a Mortgage Loan Seller is obligated pursuant to the terms of the Bank of
America Mortgage Loan Purchase Agreement to promptly (and in any event within 90
days following the later of the Closing Date or the delivery of all assignments
and UCC Financing Statements to Bank of America) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate and to the
extent timely delivered to Bank of America in final, recordable form, each
assignment of Mortgage, assignment of Assignment of Leases and Rents and any
other recordable documents (to the extent that Bank of America has actual
knowledge that such documents are to be recorded) relating to the Mortgage Loan,
in favor of the Trustee referred to in clause (iv) of the definition of
"Mortgage File" and each UCC-2 and UCC-3 assignment in favor of the Trustee and
so delivered to Bank of America and referred to in clause (viii) of the
definition of "Mortgage File." Each such assignment, UCC-2 and UCC-3 shall
reflect that the recorded original should be returned by the public recording
office to Bank of America or its designee following recording, and each such
UCC-2 and UCC-3 assignment shall reflect that the file copy thereof should be
returned to Bank of America or its designee following filing; provided, that in
those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, Bank of America
shall obtain therefrom a certified copy of the recorded original, at the expense
of the Depositor. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, Bank of
America shall promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter Bank of America shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate. On
a monthly basis, Bank of America shall forward to the Master Servicer a copy,
and to the Trustee the original, of the aforementioned recorded assignments and
UCC-2s and UCC-3s following Bank of America's receipt thereof, to the extent not
previously provided.
(e) All documents and records in the Servicing File in possession
of the Depositor or the Mortgage Loan Sellers that relate to the Mortgage Loans
and that are not required to be a part of a Mortgage File in accordance with the
definition thereof (including any original letters of credit), together with all
Escrow Payments and Reserve Accounts in the possession thereof, shall be
delivered to the Master Servicer or such other Person as may be directed by the
Master Servicer (at the expense of the applicable Mortgage Loan Seller) on or
before the Closing Date and shall be held by the Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders; provided,
however, the Master Servicer shall have no responsibility for holding documents
created or maintained by the Special Servicer hereunder and not delivered to the
Master Servicer. Within 30 days following the Closing Date, the Master Servicer
shall provide to the Trustee, with a copy to the Controlling Class
Representative, a certification executed by a duly authorized officer of the
Master Servicer, certifying to the Trustee and the Certificateholders as to the
original letters of credit held by or on behalf of the Master Servicer and
identifying the letters of credit, the amounts of the letters of credit and the
Mortgage Loans to which they relate.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date and hereby represents and warrants
that it has delivered a copy of a fully executed counterpart of each of the
First Union Mortgage Loan Purchase Agreement and the Bank of America Mortgage
Loan Purchase Agreement, as in full force and effect on the Closing Date.
SECTION 2.02 Acceptance of the Trust Fund by Trustee.
---------------------------------------
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
provisos in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further limitations on review provided for in Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully executed
counterpart of each of the First Union Mortgage Loan Purchase Agreement and the
Bank of America Mortgage Loan Purchase Agreement, all in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents and the other documents received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer, the Controlling Class Representative and each Mortgage Loan
Seller that except as identified in the schedule of exceptions, which is
attached hereto as Exhibit C-1 without regard to the proviso in the definition
of "Mortgage File", each of the original executed Mortgage Notes as described in
clause (i) of the definition of Mortgage File are in its possession and such
Mortgage Note has been reviewed by it and (A) appears regular on its face, (B)
appears to have been executed and (C) purports to relate to the related Mortgage
Loan. In addition, within ninety (90) days after the Closing Date (and if any
exceptions are noted, again every 90 days thereafter until the second
anniversary of the Closing Date, and every 180 days thereafter until the fifth
anniversary of the Closing Date, and thereafter upon request by any party
hereto, any Mortgage Loan Seller, or the Majority Subordinate Certificateholder,
the Trustee or the Custodian on its behalf will review the Mortgage Files and
certify (in a certificate substantially in the form of Exhibit C-2) to each of
the Depositor, the Master Servicer, the Special Servicer and each Mortgage Loan
Seller and the Majority Subordinate Certificateholder) that, with respect to
each Mortgage Loan listed in the Mortgage Loan Schedule, except as specifically
identified in the schedule of exceptions annexed thereto, (i) without regard to
the proviso in the definition of "Mortgage File," all documents specified in
clauses (i), (ii), (iv)(a), (v) and (vii), and to the extent provided in the
related Mortgage File and actually known by a Responsible Officer of the Trustee
to be required, clauses (iii), (iv)(b), (iv)(c), (vi), (viii) and (ix) of the
definition of "Mortgage File" are in its possession, (ii) all documents
delivered or caused to be delivered by the Mortgage Loan Seller constituting the
related Mortgage File have been reviewed by it and appear regular on their face
and appear to relate to such Mortgage Loan and (iii) based on such examination
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule for such Mortgage Loan with respect to the items
specified in clauses (v) and (vi)(c) of the definition of "Mortgage Loan
Schedule" is correct. Further, with respect to the documents described in clause
(viii) of the definition of Mortgage File, absent actual knowledge to the
contrary or copies of UCC Financing Statements delivered to the Trustee as part
of the Mortgage File indicating otherwise, the Trustee may assume, for purposes
of the certification delivered in this Section 2.02(a), that the related
Mortgage File should include one state level UCC Financing Statement filing and
one local UCC Financing Statement filing for each Mortgaged Property (or with
respect to any Mortgage Loan that has two or more Mortgagors, for each
Mortgagor), or in the case of jurisdictions that require only a local UCC
Financing Statement filing, that the related Mortgage File should include one
local UCC Financing Statement filing for each Mortgaged Property (or with
respect to any Mortgage Loan that has two or more Mortgagors, for each
Mortgagor).
(b) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.
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(a) If any party hereto discovers or receives notice that any
document or documents constituting a part of a Mortgage File has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule, or does not appear to be regular on its face (each, a "Document
Defect"), or discovers or receives notice of a breach of any representation or
warranty relating to any Mortgage Loan set forth in the First Union Mortgage
Loan Purchase Agreement or the Bank of America Mortgage Loan Purchase Agreement
(a "Breach"), the party discovering such Document Defect or Breach shall give
written notice (which notice, in respect of any obligation of the Trustee to
provide notice of a Document Defect, shall be deemed given by the delivery of
the certificate as required by Section 2.2(a)) to the other parties hereto, to
the Majority Subordinate Certificateholder and to the Rating Agencies of such
Document Defect or Breach. Promptly upon becoming aware of any Document Defect
or Breach (including through such written notice provided by any party hereto or
the Majority Subordinate Certificateholder as provided above), if any party
hereto determines that such Document Defect or Breach materially and adversely
affects the interests of the Certificateholders or the value of the affected
Mortgage Loan such party shall notify the Master Servicer of such determination
and promptly after receipt of such notice, the Master Servicer shall request in
writing (with a copy to the other parties hereto, the Majority Subordinate
Certificateholder, the Rating Agencies and the Controlling Class Representative
(if different from the Majority Subordinate Certificateholder), that the
applicable Mortgage Loan Seller, not later than ninety (90) days from receipt of
such written request (or, in the case of a Document Defect or Breach relating to
a Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than ninety (90) days after any party to this Agreement
discovers such Document Defect or Breach) (i) cure such Document Defect or
Breach, as the case may be, in accordance with Section 3(c) of the First Union
Mortgage Loan Purchase Agreement or the Bank of America Mortgage Loan Purchase
Agreement, as applicable, (ii) repurchase the affected Mortgage Loan in
accordance with Section 3(c) of the First Union Mortgage Loan Purchase Agreement
or the Bank of America Mortgage Loan Purchase Agreement, or (iii) within two
years of the Closing Date, substitute a Qualified Substitute Mortgage Loan for
such affected Mortgage Loan and pay the Master Servicer for deposit into the
Certificate Account any Substitution Shortfall Amount in connection therewith in
accordance with Sections 3(c) and 3(d) of the First Union Mortgage Loan Purchase
Agreement or the Bank of America Mortgage Loan Purchase Agreement; provided,
however, that if such Document Defect or Breach is capable of being cured but
not within such ninety (90) day period, such Document Defect or Breach does not
relate to the Mortgage Loan not being treated as a "qualified mortgage" within
the meaning of the REMIC Provisions, and the applicable Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such ninety (90) day period, the applicable Mortgage Loan Seller
shall have an additional ninety (90) days to complete such cure (or, failing
such cure, to repurchase the related Mortgage Loan); and provided, further, with
respect to such additional ninety (90) day period the applicable Mortgage Loan
Seller shall have delivered an Officer's Certificate to the Trustee (with a copy
to the Controlling Class Representative) setting forth the reasons such Document
Defect or Breach is not capable of being cured within the initial ninety (90)
day period and what actions the applicable Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the applicable Mortgage Loan
Seller anticipates such Document Defect or Breach will be cured within the
additional ninety (90) day period; and provided; further, that no Document
Defect (other than with respect to a Mortgage Note, Mortgage, title insurance
policy, Ground Lease or any letter of credit) shall be considered to materially
and adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
Mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any borrower or third party with respect to the Mortgage Loan,
establishing the validity or priority of any lien or any collateral securing the
Mortgage Loan or for any immediate servicing obligations. For a period of two
years from the Closing Date, so long as there remains any Mortgage File as to
which there is any uncured Document Defect and so long as the applicable
Mortgage Loan Seller shall provide the Officer's Certificate pursuant to Section
3(c) of the First Union Mortgage Loan Purchase Agreement or the Bank of America
Mortgage Loan Purchase Agreement, the Trustee shall on a quarterly basis prepare
and deliver to the other parties (with a copy to the Controlling Class
Representative) a written report as to the status of such uncured Document
Defects as provided in Section 2.02(a). If the affected Mortgage Loan is to be
repurchased or substituted, the Master Servicer shall designate the Certificate
Account as the account to which funds in the amount of the Purchase Price or the
Substitution Shortfall Amount, as applicable, are to be wired. Any such
repurchase or substitution of a Mortgage Loan shall be on a whole loan,
servicing released basis.
(b) In connection with any repurchase or substitution of one or
more Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request
for Release of a Servicing Officer of the Master Servicer certifying as to the
receipt of the applicable Purchase Price(s) in the Certificate Account (in the
case of any such repurchase) or the receipt of the applicable Substitution
Shortfall Amount(s) in the Certificate Account and upon the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively (in the
case of any such substitution), (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
applicable Mortgage Loan Seller the legal and beneficial ownership of each
repurchased Mortgage Loan or deleted Mortgage Loan, as applicable, being
released pursuant to this Section 2.03, and (ii) the Trustee, the Custodian, the
Master Servicer, and the Special Servicer shall each tender to the applicable
Mortgage Loan Seller, upon delivery to each of them of a receipt executed by the
applicable Mortgage Loan Seller, all portions of the Mortgage File and other
documents pertaining to each such Mortgage Loan possessed by it and the Master
Servicer and the Special Servicer shall release to the applicable Mortgage Loan
Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased Mortgage Loan; provided, that such tender by the Trustee or the
Custodian shall be conditioned upon its receipt from the Master Servicer or the
Special Servicer of a Request for Release. Thereafter, the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall have no further
responsibility with regard to the related repurchased Mortgage Loan(s) or
deleted Mortgage Loan(s), as applicable, and the related Mortgage File(s) and
Servicing File(s). The Master Servicer shall, and is hereby authorized and
empowered by the Trustee to, prepare, execute and deliver in its own name, on
behalf of the Certificateholders and the Trustee or any of them, the
endorsements and assignments contemplated by this Section 2.03, and the Trustee
shall execute any powers of attorney that are prepared and delivered to the
Trustee by the Master Servicer and are necessary to permit the Master Servicer
to do so. The Master Servicer shall indemnify the Trustee for any reasonable
costs, fees, liabilities and expenses incurred by the Trustee in connection with
the negligent or willful misuse by the Master Servicer of such powers of
attorney. Upon repurchase or substitution of a Mortgage Loan, the Depositor
shall amend the Mortgage Loan Schedule. At the time a substitution is made, the
related Mortgage Loan Purchase Agreement will provide that the Mortgage Loan
Seller shall deliver the related Mortgage File to the Trustee and certify that
the substitute Mortgage Loan is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans may be made in any calendar month after the Determination Date for such
month. Periodic Payments due with respect to any Qualified Substitute Mortgage
Loan after the related date of substitution shall be part of REMIC I. No
substitution of a Qualified Substitute Mortgage Loan for a deleted Mortgage Loan
shall be permitted under this Agreement if after such substitution, the
aggregate of the Stated Principal Balances of all Qualified Substitute Mortgage
Loans which have been substituted for deleted Mortgage Loans exceeds 10% of the
aggregate Cut-off Date Balance of all the Mortgage Loans. Periodic Payments due
with respect to any Qualified Substitute Mortgage Loan on or prior to the
related date of substitution shall not be part of the Trust Fund or REMIC I and
will (to the extent received by the Master Servicer) be remitted by the Master
Servicer to the applicable Mortgage Loan Seller promptly following receipt.
(d) This Agreement, the First Union Mortgage Loan Purchase
Agreement and the Bank of America Mortgage Loan Purchase Agreement provide the
sole remedies available to the Certificateholders, or the Trustee on behalf of
the Certificateholders, respecting any Document Defect or Breach under this
Agreement with respect to the Mortgage Loans purchased by the Depositor
thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in
the case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Sellers under
Section 3 of the First Union Mortgage Loan Purchase Agreement and the Bank of
America Mortgage Loan Purchase Agreement.
SECTION 2.04 Representations and Warranties of Depositor.
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(a) The Depositor hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation or
bylaws or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to
the Trust Fund pursuant to this Agreement, (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans and all servicing rights pertaining
thereto.
(ix) The Depositor is transferring the Mortgage Loans to the Trust
Fund free and clear of any liens, pledges, charges and security interests.
(b) The representations and warranties of the Depositor set forth
in Section 2.04(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties.
SECTION 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC I
by Trustee.
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The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Mortgage Loans
to the Trustee for the benefit of the Holders of the Class R-I Certificates and
REMIC II as the holder of the REMIC I Regular Interests. The Trustee
acknowledges the assignment to it of the Mortgage Loans 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-I Certificates and REMIC II as the
holder of the REMIC I Regular Interests.
SECTION 2.06 Execution, Authentication and Delivery of Class R-I
Certificates.
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The Trustee pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, as the Certificate
Registrar, authenticated, as the Authenticating Agent, and delivered to or upon
the order of the Depositor, the Class R-I Certificates in authorized
denominations.
SECTION 2.07 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee.
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The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the respective Holders of the REMIC
II Certificates and the Trustee as holder of the Class A-2F Regular Interest for
the benefit of Holders of the Class A-2F Certificates. The Trustee acknowledges
the assignment to it of the REMIC I Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all present
and future Holders of the REMIC II Certificates and the Trustee as holder of the
Class A-2F Regular Interest for the benefit of Holders of the Class A-2F
Certificates.
SECTION 2.08 Execution, Authentication and Delivery of REMIC II
Certificates and Issuance of Class A-2F Regular
Interest.
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Concurrently with the assignment to it of the REMIC I Regular
Interests and in exchange therefor, and pursuant to the written request of the
Depositor, executed by an affiliate of the Depositor, the Trustee, as
Certificate Registrar, has executed, and the Trustee, as the Authenticating
Agent, has authenticated and delivered to or upon the order of the Depositor,
the REMIC II Certificates in authorized denominations and has authorized
issuance to the Depositor of the Class A-2F Regular Interest evidencing the
entire beneficial ownership of REMIC II. The rights of the holders of the
respective Classes of REMIC II Certificates and the Class A-2F Regular Interest
to receive distributions from the proceeds of REMIC II in respect of their REMIC
II Certificates or Class A-2F Regular Interest, and all ownership interests
evidenced or constituted by the respective Classes of REMIC II Certificates and
Class A-2F Regular Interest in such distributions, shall be as set forth in this
Agreement.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the 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 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 A-2F Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
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(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders in accordance with any and all applicable laws, the
term of this Agreement, the terms of the respective Mortgage Loans, and, to the
extent consistent with the foregoing, the Servicing Standard. Without limiting
the foregoing, and subject to Section 3.21, (i) the Master Servicer shall
service and administer all Mortgage Loans that are not Specially Serviced
Mortgage Loans, and (ii) the Special Servicer shall service and administer each
Specially Serviced Mortgage Loan and REO Property and shall render such services
with respect to all Mortgage Loans and REO Properties as are specifically
provided for herein; provided, that the Master Servicer shall continue to
receive payments, make all calculations, and prepare, or cause to be prepared,
all reports required hereunder with respect to the Specially Serviced Mortgage
Loans, except for the reports specified herein as prepared by the Special
Servicer, as if no Servicing Transfer Event had occurred and with respect to the
REO Properties (and the related REO Loans) as if no REO Acquisition had
occurred, and to render such incidental services with respect to such Specially
Serviced Mortgage Loans and REO Properties as are specifically provided for
herein; provided, further, however, that the Master Servicer shall not be liable
for its failure to comply with such duties insofar as such failure results from
a failure by the Special Servicer to provide sufficient information to the
Master Servicer to comply with such duties or failure by the Special Servicer to
otherwise comply with its obligations hereunder. All references herein to the
respective duties of the Master Servicer and the Special Servicer, and to the
areas in which they may exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master
Servicer and the Special Servicer each shall have full power and authority,
acting alone, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders, the
Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Section 3.20 and Section 6.11, any
and all modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall, at the written request of the Master Servicer or the Special
Servicer, promptly execute any limited powers of attorney and other documents
furnished by the Master Servicer or the Special Servicer that are necessary or
appropriate to enable them to carry out their servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held liable
for any misuse of any such power of attorney by the Master Servicer or the
Special Servicer.
(c) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venture, partner
or agent. Unless the same Person acts as both Master Servicer and Special
Servicer, the Master Servicer shall not be responsible for the actions of or
failure to act by the Special Servicer and the Special Servicer shall not be
responsible for the actions of or the failure to act by the Master Servicer.
SECTION 3.02 Collection of Mortgage Loan Payments.
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(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Mortgage Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided, that with respect to the Mortgage Loans
that have Anticipated Repayment Dates, so long as the related Mortgagor is in
compliance with each provision of the related Mortgage Loan documents, the
Master Servicer and Special Servicer (including the Special Servicer in its
capacity as a Certificateholder), shall not take any enforcement action with
respect to the failure of the related Mortgagor to make any payment of
Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided, that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. Consistent with the foregoing and subject to
Section 3.20, the Special Servicer, with regard to a Specially Serviced Mortgage
Loan, or the Master Servicer, with regard to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, may waive any Penalty Interest or late payment
charge in connection with any payment on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan in the
form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage (or, if
required pursuant to the express provisions of the related Mortgage, or as
determined by the Master Servicer or Special Servicer in accordance with the
Servicing Standard, to the repair or restoration of the related Mortgaged
Property, and, in the absence of such express provisions, shall be applied for
purposes of this Agreement: first, as a recovery of any related and unreimbursed
Advances plus unreimbursed interest accrued thereon; second, as a recovery of
accrued and unpaid interest at the related Mortgage Rate on such Mortgage Loan,
to the extent such amounts have not been previously advanced, and exclusive of
any portion thereof that constitutes Additional Interest; third, as a recovery
of principal of such Mortgage Loan then due and owing, to the extent such
amounts have not been previously advanced, including, without limitation, by
reason of acceleration of the Mortgage Loan following a default thereunder;
fourth, in accordance with the normal servicing practices of the Master
Servicer, as a recovery of any other amounts then due and owing under such
Mortgage Loan (other than Additional Interest), including, without limitation,
Prepayment Premiums, Yield Maintenance Charges and Penalty Interest; fifth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and sixth, with respect to any ARD
Loan after its Anticipated Repayment Date, as a recovery of any unpaid
Additional Interest. All amounts collected on any Mortgage Loan in the form of
Liquidation Proceeds of the nature described in clauses (iv) through (vi) of the
definition thereof shall be deemed to be applied: first, as a recovery of any
related and unreimbursed Advances plus interest accrued thereon; second, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan to but not including the Due Date in the Collection Period of
receipt, to the extent such amounts have not been previously advanced, and
exclusive of any portion thereof that constitutes Additional Interest; third, as
a recovery of principal, to the extent such amounts have not been previously
advanced, of such Mortgage Loan to the extent of its entire unpaid principal
balance; and fourth, with respect to any ARD Loan after its Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest. No such amounts
shall be applied to the items constituting additional servicing compensation as
described in the first sentence of Section 3.11(b) or 3.11(d) unless and until
all principal and interest then due and payable on such Mortgage Loan has been
collected. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof. The provisions of this paragraph with
respect to the application of amounts collected on any Mortgage Loan shall not
alter in any way the right of the Master Servicer, the Special Servicer or any
other Person to receive payments from the Certificate Account as set forth in
clauses (ii) through (xiv) of Section 3.05(a) from amounts so applied.
(c) Within 60 days after the Closing Date, the Master Servicer
shall notify each provider of a letter of credit for each Mortgage Loan
identified as having a letter of credit on the Mortgage Loan Schedule, that the
Master Servicer or the Special Servicer on behalf of the Trustee for the benefit
of the Certificateholders shall be the beneficiary under each such letter of
credit.
(d) In the event that the Master Servicer or Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that the Master Servicer or Special Servicer will be
receiving Additional Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will promptly notify the Trustee. Subject to
the provisions of Section 3.02(a) hereof, none of the Master Servicer, the
Trustee nor the Special Servicer shall be responsible for any such Additional
Interest not collected after notice from the related Mortgagor.
SECTION 3.03 Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
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(a) The Master Servicer shall, as to all Mortgage Loans establish
and maintain one or more accounts (the "Servicing Accounts"), into which all
Escrow Payments shall be deposited and retained, and shall administer such
accounts in accordance with the terms of the Mortgage Loan documents. Each
Servicing Account shall be an Eligible Account. Withdrawals of amounts so
collected from a Servicing Account may be made (to the extent amounts have been
escrowed for such purpose) only to: (i) effect payment of items for which Escrow
Payments were collected and comparable items; (ii) reimburse the Master Servicer
or the Trustee for any unreimbursed Servicing Advances; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest, if
required and as described below, to Mortgagors on balances in the Servicing
Account; (v) pay itself interest and investment income on balances in the
Servicing Account as described in Section 3.06(b), if and to the extent not
required by law or the terms of Mortgage Loan to be paid to the Mortgagor; (vi)
withdraw amounts deposited in error or (vii) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. To
the extent permitted by law or the applicable Mortgage Loan, funds in the
Servicing Accounts may be invested only in Permitted Investments in accordance
with the provisions of Section 3.06 and in accordance with the terms of the
related Mortgage Loan documents. The Master Servicer shall pay or cause to be
paid to the Mortgagors interest, if any, earned on the investment of funds in
Servicing Accounts maintained thereby, if required by law or the terms of the
related Mortgage Loan. If the Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. The Servicing Accounts shall not be considered part of
the segregated pool of assets constituting REMIC I, REMIC II or the Grantor
Trust.
(b) The Master Servicer (or the Special Servicer for Specially
Serviced Mortgage Loans and REO Loans) shall (i) maintain accurate records with
respect to the related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date and, in any
event, prior to the institution of foreclosure or similar proceedings with
respect to the related Mortgaged Property for nonpayment of such items. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments (at the direction of the Special Servicer
for Specially Serviced Mortgage Loans and REO Loans) as allowed under the terms
of the related Mortgage Loan, or if such Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Master
Servicer shall, as to all Mortgage Loans, use reasonable efforts consistent with
the Servicing Standard to enforce the requirement of the related Mortgage that
the Mortgagor make payments in respect of such items at the time they first
become due, and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items.
(c) The Master Servicer shall, as to all Mortgage Loans make a
Servicing Advance with respect to the related Mortgaged Property in an amount
equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments, penalties and other similar
items, (ii) ground rents (if applicable), and (iii) premiums on Insurance
Policies (including environmental 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; provided, that the Master Servicer shall not
make any Servicing Advance if the Master Servicer reasonably anticipates in
accordance with the Servicing Standard that the Mortgagor will pay such amount
on or before the penalty date, and provided, further, that the Master Servicer
shall not be obligated to make any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. All such Servicing Advances shall
be reimbursable in the first instance from related collections from the
Mortgagors, and further as provided in Section 3.05(a). No costs incurred by the
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes of this Agreement, including, without limitation, the Paying
Agent's calculation of monthly distributions to Certificateholders, be added to
the unpaid Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor such costs together with interest thereon.
The Special Servicer shall give the Master Servicer and the Trustee
not less than five Business Days' notice with respect to Servicing Advances to
be made on any Specially Serviced Mortgage Loan or REO Property, before the date
on which the Master Servicer is required to make any Servicing Advance with
respect to a given Mortgage Loan or REO Property; provided, however, that only
two Business Days' notice shall be required in respect of Servicing Advances
required to be made on an urgent or emergency basis (which may include, without
limitation, Servicing Advances required to make tax or insurance payments). In
addition, the Special Servicer shall provide the Master Servicer and the Trustee
with such information in its possession as the Master Servicer or the Trustee,
as applicable, may reasonably request to enable the Master Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance. Any request by the Special
Servicer that the Master Servicer make a Servicing Advance shall be deemed to be
a determination by the Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Servicing Advance, and the Master Servicer shall be
entitled to conclusively rely on such determination. On the fourth Business Day
before each Distribution Date, the Special Servicer shall report to the Master
Servicer the Special Servicer's determination as to whether any Servicing
Advance previously made with respect to a Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable Servicing Advance. The Master Servicer shall be
entitled to conclusively rely on such a determination.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible Officer of the Trustee
has actual knowledge of such failure on the part of the Master Servicer, give
written notice of such failure to the Master Servicer. If such Servicing Advance
is not made by the Master Servicer within three Business Days after such notice
then (subject to a determination that such Servicing Advance would not be a
Nonrecoverable Servicing Advance) the Trustee shall make such Servicing Advance.
Any failure by the Master Servicer to make a Servicing Advance hereunder shall
constitute an Event of Default by the Master Servicer subject to and as provided
in Section 7.01.
(d) In connection with its recovery of any Servicing Advance from
the Certificate Account pursuant to Section 3.05(a), each of the Master Servicer
and the Trustee shall be entitled to receive, out of any amounts then on deposit
in the Certificate Account, any unpaid interest at the Reimbursement Rate in
effect from time to time, compounded annually, accrued on the amount of such
Servicing Advance (to the extent made from its own funds) from the date made to
but not including the date of reimbursement such interest to be payable: (i) out
of late payment charges and Penalty Interest collected on or in respect of the
related Mortgage Loans and, if the Servicing Advance relates to REO Properties
during the same Collection Period in which such Servicing Advance is reimbursed
(the use of such late payment charges and Penalty Interest to be allocated
between the Master Servicer and the Special Servicer on a pro rata basis based
on the amount of late payment charges and Penalty Interest that the Master
Servicer and the Special Servicer have received as additional servicing
compensation during such period); and (ii) to the extent that such late payment
charges and Penalty Interest are insufficient, but only after the related
Advance has been reimbursed pursuant to this Agreement, out of general
collections on the Mortgage Loans, and REO Properties on deposit in the
Certificate Account. The Master Servicer shall reimburse itself or the Trustee,
as appropriate and in accordance with Section 3.05(a), for any Servicing Advance
as soon as practicable after funds available for such purpose are deposited in
the Certificate Account.
(e) The determination by the Master Servicer that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee, the Controlling Class
Representative and the Depositor, setting forth the basis for such
determination, together with a copy of any Appraisal conducted within 12 months
of such determination (the cost of which may be paid out of the Certificate
Account pursuant to Section 3.05(a)) of the related Mortgaged Property or REO
Property, as the case may be; which Appraisal shall be conducted pursuant to
Section 3.09(a) by the Master Servicer, or by or on behalf of the Special
Servicer if the Mortgage Loan is a Defaulted Mortgage Loan or, if no such
Appraisal has been performed, a copy of an Appraisal of the related Mortgaged
Property or REO Property, performed within the twelve months preceding such
determination and the party delivering such appraisal has no actual knowledge of
a material adverse change in the condition of the related Mortgaged Property
that would draw into question the applicability of such Appraisal, by an
Independent Appraiser or other expert in real estate matters, and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property and any engineers'
reports, environmental surveys or similar reports that the Master Servicer or
the Special Servicer may have obtained and that support such determination. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Master Servicer or the Special Servicer that a Servicing Advance, if made, would
be a Nonrecoverable Advance; provided, however, that if the Master Servicer has
failed to make a Servicing Advance for reasons other than a determination by the
Master Servicer that such Servicing Advance would be a Nonrecoverable Advance,
the Trustee shall make such Servicing Advance within the time periods required
by Section 3.03(c) unless the Trustee in good faith, makes a determination that
such Servicing Advance would be a Nonrecoverable Advance.
(f) The Master Servicer shall, as to all Mortgage Loans establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related environmental remediation, repairs
and/or capital improvements at the related Mortgaged Property if the repairs
and/or capital improvements have been completed, and such withdrawals are made
in accordance with the Servicing Standard and the terms of the related Mortgage
Note, Mortgage and any agreement with the related Mortgagor governing such
Reserve Funds and any other items for which such Reserve Funds were intended
pursuant to the loan documents and (ii) to pay the Master Servicer interest and
investment income earned on amounts in the Reserve Accounts as described below
if permitted under the related Mortgage Loan documents. To the extent permitted
in the applicable Mortgage, funds in the Reserve Accounts to the extent invested
may be only invested in Permitted Investments in accordance with the provisions
of Section 3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve
Accounts shall not be considered part of the segregated pool of assets
comprising REMIC I, REMIC II or the Grantor Trust. Consistent with the Servicing
Standard, the Master Servicer may waive or extend the date set forth in any
agreement governing such Reserve Funds by which the required repairs and/or
capital improvements at the related Mortgaged Property must be completed.
(g) 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 within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established request
from the Mortgagor written confirmation of the establishment of such plan. 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
that such actions and remediations have been accomplished within a reasonable
time after the later of the 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(g), 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, Interest Reserve Account,
Additional Interest Account, Distribution Account
and Floating Rate Account.
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(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within one Business Day of receipt
of available funds (in the case of payments by Mortgagors or other collections
on the Mortgage Loans) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf subsequent to the Cut-off Date (other than in respect of principal and
interest on the Mortgage Loans due and payable on or before the Cut-off Date,
which payments shall be delivered promptly to the Mortgage Loan Seller or its
designee, with negotiable instruments endorsed as necessary and appropriate
without recourse), other than amounts received from Mortgagors which are to be
used to purchase defeasance collateral, or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Liquidation Proceeds described in clause (vi) of the definition thereof
that are required to be deposited in the Distribution Account pursuant to
Section 9.01) received in respect of any Mortgage Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls; and
(x) any amount paid by a Mortgagor to cover items for which a
Servicing Advance has been previously made and for which the Master
Servicer, Special Servicer or the Trustee, as applicable, has been
previously reimbursed out of the Certificate Account.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and (d), need not be deposited by the Master Servicer in the Certificate
Account. If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional servicing compensation in accordance with Section
3.11(d), assumption fees, late payment charges (to the extent not applied to pay
interest on Advances as provided in Sections 3.03(d) or 4.03(d) and other
transaction fees or other expenses received by the Master Servicer to which the
Special Servicer is entitled pursuant to either of such Sections upon receipt of
a certificate of a Servicing Officer of the Special Servicer describing the item
and amount. The Certificate Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series and the other accounts of the Master Servicer. The
Master Servicer shall promptly provide notice to the Controlling Class
Representative of any change in the location of the Certificate Account.
Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts (net of any reimbursable expenses incurred by the
Special Servicer) to or at the direction of the Master Servicer for deposit into
the Certificate Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement. Any such amounts received by the Special Servicer with respect to
an REO Property shall be deposited by the Special Servicer into the REO Account
and remitted to the Master Servicer for deposit into the Certificate Account
pursuant to Section 3.16(c). With respect to any such amounts paid by check to
the order of the Special Servicer, the Special Servicer shall endorse such check
to the order of the Master Servicer and shall deliver promptly, but in no event
later than three Business Days after receipt, any such check to the Master
Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
(b) The Paying Agent shall establish and maintain one or more
trust accounts (collectively, the "Distribution Account") at the Corporate Trust
Office to be held in trust for the benefit of the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer shall
deliver to the Paying Agent each month on or before 12:00 noon (New York City
time) on the P&I Advance Date therein, for deposit in the Distribution Account,
an aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount (calculated without regard to clauses (a)(ii),
(a)(v) and (b)(ii)(B) of the definition thereof) for the related Distribution
Date then on deposit in the Certificate Account, together with (i) any
Prepayment Premiums, Yield Maintenance Charges and/or Additional Interest
received on the Mortgage Loans during the related Collection Period, and (ii) in
the case of the final Distribution Date, any additional amounts contemplated by
the second paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Paying Agent for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);and
(ii) the Purchase Price paid in connection with the purchase by the
Master Servicer of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such amounts required
to be deposited in the Certificate Account pursuant to Section 9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Paying Agent that are required by
the terms of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Interest Reserve
Account shall be an Eligible Account. On or before each Distribution Date in
February and, during each year that is not a leap year, January, the Master
Servicer shall withdraw from the Certificate Account and deposit in the Interest
Reserve Account, with respect to each Interest Reserve Loan, an amount equal to
the Interest Reserve Amount in respect of such Interest Reserve Loan for such
Distribution Date (such withdrawal from the Certificate Account to be made out
of general collections on the Mortgage Pool where any related P&I Advance was
deposited in the Distribution Account).
(d) Prior to any Collection Period during which Additional
Interest is received, and upon notification from the Master Servicer or Special
Servicer pursuant to Section 3.02(d), the Trustee, on behalf of the
Certificateholders shall establish and maintain the Additional Interest Account
in the name of the Trustee in trust for the benefit of the Class Q
Certificateholders. The Additional Interest Account shall be established and
maintained as an Eligible Account. Prior to the applicable Distribution Date,
the Master Servicer shall remit to the Trustee for deposit in the Additional
Interest Account an amount equal to the Additional Interest received during the
applicable Collection Period.
Following the distribution of Additional Interest to Class Q
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Additional Interest, the Trustee shall terminate the Additional Interest
Account.
(e) Funds in the Certificate Account and the Interest Reserve
Account may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall give written notice to the
Trustee, the Special Servicer and the Rating Agencies of the location of the
Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Paying Agent shall give
notice to the Trustee, the Master Servicer, the Special Servicer and the Rating
Agencies of any new location of the Distribution Account prior to any change
thereof.
(f) 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: "▇▇▇▇▇ Fargo Bank Minnesota, as Trustee, in
trust for Holders of the First Union - Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1, 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 Distribution Account
on each P&I Advance 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(c) 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(c);
(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 P&I
Advance 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,
Interest Reserve Account, the Additional Interest
Account and the Distribution Account.
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(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Paying Agent for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b) and any amount that may be applied to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made with its own funds, the Trustee's and Master
Servicer's right to reimbursement pursuant to this clause (ii) with respect
to any P&I Advance (other than Nonrecoverable Advances, which are
reimbursable pursuant to clause (vii) below) being limited to amounts that
represent Late Collections of interest (net of the related Servicing Fees)
and principal (net of any related Workout Fee or Principal Recovery Fee)
received in respect of the particular Mortgage Loan or REO Loan as to which
such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage Loan or
REO Loan being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees or Principal Recovery Fees
in respect of each Specially Serviced Mortgage Loan, Corrected Mortgage
Loan and REO Loan, the Special Servicer's (or, if applicable, any
predecessor Special Servicer's) right to payment pursuant to this clause
(v) with respect to any such Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such Specially Serviced Mortgage Loan
or Corrected Mortgage Loan (whether in the form of payments or Liquidation
Proceeds) or such REO Loan (whether in the form of REO Revenues or
Liquidation Proceeds) that are allocable as a recovery of principal or
interest thereon (provided that no Principal Recovery Fee shall be payable
out of (i) Insurance Proceeds and (ii) any Liquidation Proceeds received in
connection with a condemnation or the purchase of any Mortgage Loan or REO
Property by a Mortgage Loan Seller pursuant to the First Union Mortgage
Loan Purchase Agreement or the Bank of America Mortgage Loan Purchase
Agreement, by the Majority Subordinate Certificateholder pursuant to
Section 3.18(b), by the Master Servicer or Special Servicer pursuant to
Section 3.18(c), or by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01);
(vi) to reimburse the Trustee or itself, in that order, for any
unreimbursed Servicing Advances (in each case, made with its own funds),
the Trustee's and the Master Servicer's respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance being
limited to payments made by the related Mortgagor that are allocable to
such Servicing Advance, or to Liquidation Proceeds, Insurance Proceeds and,
if applicable, REO Revenues received in respect of the particular Mortgage
Loan, or REO Property as to which such Servicing Advance was made;
(vii) to reimburse the Trustee or itself, in that order, for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances or to pay itself, with respect to any Mortgage Loan, or any REO
Property, any related earned Master Servicing Fee that remained unpaid in
accordance with clause (iii) above following a Final Recovery Determination
made with respect to such Mortgage Loan or REO Property and the deposit
into the Certificate Account of all amounts received in connection
therewith;
(viii) at such time as it reimburses the Trustee or itself, in that
order, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above, to pay the Trustee or itself, as the case may be, in that order, any
interest accrued and payable thereon in accordance with Section 3.03(d) or
4.03(d), as applicable; the Master Servicer's rights to payment pursuant to
this clause (viii) with respect to interest on any Advance being permitted
to be satisfied (A) out of late payment charges and Penalty Interest
collected on or in respect of the related Mortgage Loan and REO Loan,
during the same Collection Period in which such Advance is reimbursed (the
use of such late payment charges and Penalty Interest to be allocated
between the Master Servicer and the Special Servicer on a pro rata basis
based on the amount of late payment charges and Penalty Interest that the
Master Servicer and the Special Servicer have received as additional
servicing compensation during such period), and (B) to the extent that the
late payment charges and Penalty Interest described in the immediately
preceding clause (A) are insufficient, but only after such Advance has been
reimbursed, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.12(a) to the extent not otherwise offset pursuant to
the terms of this Agreement;
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Certificate Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Certificate Account for any Collection Period; (B) any
Prepayment Interest Excesses to the extent not offset by Prepayment
Interest Shortfalls; and (C) Penalty Interest and late payment charges (to
the extent such Penalty Interest and/or late payment charges were not
applied to offset interest on Advances pursuant to clause (viii)(A) above
or inspection expenses pursuant to Section 3.12(a));
(xi) to pay for the cost of an independent appraiser or other expert
in real estate matters retained pursuant to Section 3.03(e), 3.09(a),
3.18(e) or 4.03(c);
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person pursuant
to Section 6.03;
(xiii) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions of
Counsel contemplated by Sections 3.09(b)(ii), 3.20(d) and 11.02(a), (C) the
cost of an Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c)
in connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, and (D) the cost of recording
this Agreement in accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, First Union, Bank of
America, the Majority Subordinate Certificateholder or any other Person, as
the case may be, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to this Agreement, all amounts received
thereon subsequent to the date of purchase;
(xv) to withdraw any Interest Reserve Amount and deposit such
Interest Reserve Amount into the Interest Reserve Account pursuant to
Section 3.04(c);
(xvi) to remit to the Trustee for deposit into the Additional
Interest Account the amounts required to be deposited pursuant to Section
3.04(d);
(xvii) to remit to the Paying Agent for deposit into the
Distribution Account the amounts required to be deposited pursuant to
Section 3.04(b);
(xviii) to pay the cost of any Environmental Assessment or any
remedial, corrective or other action pursuant to Section 3.09(c);
(xix) to withdraw any amounts deposited in error;
(xx) to withdraw any other amounts that this Agreement expressly
provides may be withdrawn from the Certificate Account; and
(xxi) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Certificate Account pursuant to clauses
(ii)-(xviii) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee from
the Certificate Account amounts permitted to be paid to the Special Servicer (or
to such third party contractors) or the Trustee therefrom promptly upon receipt
of a certificate of a Servicing Officer of the Special Servicer or of a
Responsible Officer of the Trustee describing the item and amount to which the
Special Servicer (or such third party contractors) or the Trustee is entitled.
The Master Servicer may rely conclusively on any such certificate and shall have
no duty to re-calculate the amounts stated therein. The Special Servicer shall
keep and maintain separate accounting for each Specially Serviced Mortgage Loan
and REO Property, on a loan-by-loan and property-by-property basis, for the
purpose of justifying any request for withdrawal from the Certificate Account.
With respect to each Mortgage Loan for which it makes an Advance, the Trustee
shall similarly keep and maintain separate accounting for each Mortgage Loan, on
a loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account for reimbursements of
Advances or interest thereon.
(b) The Paying Agent may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make deemed distributions to itself as holder of the REMIC I
Regular Interests and to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to make distributions to the Grantor Trust in respect of the
Class A-2F Regular Interest, with a credit for the amount of the Net Swap
Payment deemed to be distributed by the Trustee to the Swap Counterparty
pursuant to Sections 3.04(f) and 4.01(c);
(iii) to pay the Trustee or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05;
(iv) to pay the Trustee the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to the Mortgage Loans;
(v) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Section 3.20(d), 9.02(a)(i) and
10.01(i), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
which amendment is in furtherance of the rights and interests of
Certificateholders;
(vi) to pay any and all federal, state and local taxes imposed on
any of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Trustee, the REMIC Administrator, the Master Servicer or the
Special Servicer is liable therefor pursuant to Section 10.01(j);
(vii) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(f);
(viii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(ix) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Master Servicer shall on each P&I Advance Date to occur in
March of each year, withdraw from the Interest Reserve Account and deposit into
the Distribution Account in respect of each Interest Reserve Loan, an amount
equal to the aggregate of the Interest Reserve Amounts deposited into the
Interest Reserve Account pursuant to Section 3.04(c) during the immediately
preceding Collection Period and, if applicable, the second preceding Collection
Period.
(d) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Additional Interest Account to the extent required to make
the distributions of Additional Interest required by Section 4.01(c).
SECTION 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account, the Additional Interest Account
and the REO Account.
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(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Interest
Reserve Account or the Certificate Account (each, for purposes of this Section
3.06, an "Investment Account"), and the Special Servicer may direct in writing
any depository institution maintaining the REO Account (also, for purposes of
this Section 3.06, an "Investment Account"), to invest, or if it is such
depository institution, may itself invest, the funds held therein only in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. Funds held in the Additional Interest
Account shall remain uninvested. In the event that the Master Servicer shall
have failed to give investment directions for any Servicing Account, any Reserve
Account, the Certificate Account, the Interest Reserve Account (exclusive of any
accounts as are held by the Master Servicer) or the Special Servicer shall have
failed to give investment directions for the REO Account by 11:00 A.M. New York
time on any Business Day on which there may be uninvested cash, such funds held
in the REO account shall be invested in securities described in clause (i) of
the definition of the term "Permitted Investments"; and such funds held in such
other accounts shall be invested in securities described in clause (v) of such
definition. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Master Servicer
(with respect to Permitted Investments of amounts in the Servicing Accounts, the
Reserve Accounts, the Certificate Account or the Interest Reserve Account) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), on behalf of the Trustee, shall (and the Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the person that
shall) maintain continuous possession of any Permitted Investment that is either
(i) a "certificated security", as such term is defined in the UCC, or (ii) other
property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by the Master Servicer or the Special Servicer shall
constitute possession by a Person designated by the Trustee for purposes of
Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account, Servicing Accounts, the Interest Reserve Account and
Reserve Accounts), or the Special Servicer (in the case of the REO Account)
shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Certificate
Account, or the Interest Reserve Account, interest and investment income
realized on funds deposited therein, to the extent of the related Net Investment
Earnings, if any, for each Collection Period and, in the case of a Reserve
Account or a Servicing Account, to the extent not otherwise payable to the
related Mortgagor in accordance with applicable law or the related Mortgage Loan
documents, shall be for the sole and exclusive benefit of the Master Servicer
and shall be subject to its withdrawal in accordance with Section 3.03(a),
3.03(f) or 3.05(a), as applicable. Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of the Servicing Accounts, the Reserve Accounts, the
Interest Reserve Account and the Certificate Account, excluding any accounts
containing amounts invested solely for the benefit of, and at the direction of,
the Mortgagor under the terms of the Mortgage Loan or applicable law) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period, provided, that neither the
Master Servicer nor the Special Servicer shall be required to deposit any loss
on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment and the Special Servicer or the Master Servicer fails to
deposit any losses with respect to such Permitted Investment pursuant to Section
3.06(b), the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
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(a) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that if and to the
extent that any such Mortgage permits the holder thereof any discretion (by way
of consent, approval or otherwise) as to the insurance coverage that the related
Mortgagor is required to maintain, the Master Servicer shall exercise such
discretion in a manner consistent with the Servicing Standard with a view
towards requiring business interruption or rental interruption coverage for 12
months; and provided further that, if and to the extent that a Mortgage so
permits, the related Mortgagor shall be required to exercise its reasonable best
efforts to obtain the required insurance coverage from Qualified Insurers and
required insurance coverage obtained by the Master Servicer shall be from
Qualified Insurers. The cost of any such insurance coverage obtained by either
the Master Servicer or the Special Servicer shall be a Servicing Advance to be
paid by the Master Servicer pursuant to Section 3.03. The Majority Subordinate
Certificateholder may request that earthquake insurance be secured for one or
more Mortgaged Properties at the expense of the Majority Subordinate
Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also
cause to be maintained for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage; provided that
all such insurance shall be obtained from Qualified Insurers. All such insurance
policies (i) shall contain (if they insure against loss to property and do not
relate to an REO Property) a "standard" mortgagee clause, with loss payable to
the Trustee or the Master Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of
the Special Servicer (in the case of insurance maintained in respect of REO
Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30
days' prior written notice to the insured party; and (iv) in each case such
insurance shall be issued by an insurer authorized under applicable law to issue
such insurance. Any amounts collected by the Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan
or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the
case of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer in maintaining any such insurance shall
not, for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to unpaid principal balance of the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so
permit.
(b) If the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans, and/or REO Properties that
it is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as the case may be, shall conclusively be deemed to have satisfied its
obligation to cause hazard insurance to be maintained on the related Mortgaged
Properties and/or REO Properties. Such blanket policy may contain a deductible
clause (not in excess of a customary amount), in which case the Master Servicer
or the Special Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses that would have been covered by such policy, promptly
deposit into the Certificate Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause the qualification, downgrading or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
for ten days' written notice to the Trustee prior to any cancellation.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans, or in such other
form and amount as would not cause the qualification, downgrade or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide for ten days' written notice to the Trustee prior to cancellation. The
Master Servicer and the Special Servicer shall each cause the Trustee to be an
additional loss payee on any policy currently in place or procured pursuant to
the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A" or the equivalent by all of the Rating Agencies (or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this subsection.
SECTION 3.08 Enforcement of Alienation Clauses.
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(a) With respect to all Mortgage Loans other than Specially
Serviced Mortgage Loans, the Master Servicer or, in the case of a Specially
Serviced Mortgage Loan, the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall, to the extent permitted by applicable law, enforce
the restrictions contained in the related Mortgage on transfers or further
encumbrances of the related Mortgaged Property and on transfers of interests in
the related Mortgagor, unless the Master Servicer (with the written consent of
the Special Servicer if the then Stated Principal Balance of the related
Mortgage Loan exceeds $2,500,000 (which consent, if required hereunder, shall be
deemed given if not denied within the later of (a) 15 Business Days after the
Master Servicer provides to the Special Servicer its recommendation for such
action and all information reasonably requested by the Special Servicer for the
analysis of such request and (b) 12 Business Days after the Special Servicer
notifies the Controlling Class Representative of such proposed action, pursuant
to and if required under Section 6.11, which notice, if required, shall be given
by the Special Servicer no later than three Business Days after the commencement
of the 15 Business Day period described in the preceding clause (a))) or the
Special Servicer, as applicable, has determined, consistent with the Servicing
Standard, that waiver of such restrictions would be in accordance with the
Servicing Standard. Promptly after the Master Servicer (with the written consent
of the Special Servicer if the then Stated Principal Balance of the related
Mortgage Loan exceeds $2,500,000 (which consent, if required hereunder, shall be
deemed given if not denied within the later of (a) 15 Business Days after the
Master Servicer provides to the Special Servicer its recommendation for such
action and all information reasonably requested by the Special Servicer for the
analysis of such request and (b) 12 Business Days after the Special Servicer
notifies the Controlling Class Representative of such proposed action, pursuant
to and if required under Section 6.11, which notice, if required, shall be given
by the Special Servicer no later than three Business Days after the commencement
of the 15 Business Day period described in the preceding clause (a))) or the
Special Servicer, as applicable, has made any such determination, the Master
Servicer or the Special Servicer shall deliver to the Trustee, the Rating
Agencies and each other an Officers' Certificate setting forth the basis for
such determination. The Master Servicer or the Special Servicer shall not
exercise (and the Special Servicer shall not consent to) any such waiver in
respect of a due-on-encumbrance provision of any Mortgage Loan without receiving
the prior written confirmation from the Rating Agencies that such action would
not result in a downgrading, qualification or withdrawal of the ratings then
assigned to the Certificates. The Master Servicer or the Special Servicer shall
not exercise (and the Special Servicer shall not consent to) any such waiver in
respect of a due-on-sale provision of any Mortgage Loan for which the aggregate
of the Stated Principal Balance of such Mortgage Loan and the Stated Principal
Balance of all other Mortgage Loans that are cross-collateralized,
cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on
such Mortgage Loan, are equal to or greater than 5% of the aggregate Stated
Principal Balance of all Mortgage Loans or $20,000,000 without receiving the
prior written confirmation from the Rating Agencies that such action would not
result in a downgrading, qualification or withdrawal of any of the ratings then
assigned to the Certificates. In the event that such Mortgage Loan does not meet
the criteria set forth in the prior sentence, and the Mortgage Loan documents
contain a requirement for Rating Agency approval, the Master Servicer or the
Special Servicer may waive such requirement without Rating Agency approval in
accordance with the Servicing Standards.
(b) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer (without the Special Servicer's consent) or the Special
Servicer, as applicable, may grant, without any Rating Agency confirmation as
provided in paragraph (a) above, a Mortgagor's request for consent to subject
the related Mortgaged Property to an easement or right-of-way for utilities,
access, parking, public improvements or another purpose, and may consent to
subordination of the related Mortgage Loan to such easement or right-of-way
provided the Master Servicer or the Special Servicer, as applicable, shall have
determined in accordance with the Servicing Standards that such easement or
right-of-way shall not materially interfere with the then-current use of the
related Mortgaged Property, or the security intended to be provided by such
Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or
materially or adversely affect the value of such Mortgaged property or cause the
Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
(c) Within ninety (90) days of the Closing Date, with respect to
each of the Mortgage Loans covered by an environmental insurance policy, the
Master Servicer shall notify the insurer under such environmental insurance
policy and take all other action necessary for the Trustee, on behalf of the
Certificateholders, to be an insured (and for the Master Servicer, on behalf of
the Trust Fund, to make claims) under such environmental insurance policy. In
the event that the Master Servicer has actual knowledge of any event (an
"Insured Environmental Event") giving rise to a claim under any environmental
insurance policy in respect of any Mortgage Loan covered thereby, the Master
Servicer shall, in accordance with the terms of such environmental insurance
policy and the Servicing Standard, timely make a claim thereunder with the
appropriate insurer and shall take such other actions in accordance with the
Servicing Standard which are necessary under such environmental insurance policy
in order to realize the full value thereof for the benefit of the
Certificateholders. Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with any such
claim under an environmental insurance policy shall be paid by the Master
Servicer and shall be reimbursable to it as a Servicing Advance. With respect to
each environmental insurance policy that relates to one or more Mortgage Loans,
the Master Servicer shall review and familiarize itself with the terms and
conditions relating to enforcement of claims and shall monitor the dates by
which any claim must be made or any action must be taken under such policy to
realize the full value thereof for the benefit of the Certificateholders in the
event the Master Servicer has actual knowledge of an Insured Environmental Event
giving rise to a claim under such policy.
In the event that the Master Servicer receives notice of any
termination of any environmental insurance policy that relates to one or more
Mortgage Loans, the Master Servicer shall, within five Business Days after
receipt of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies and the Trustee of such termination in
writing. Upon receipt of such notice, the Master Servicer shall address such
termination in accordance with Section 3.07(a) in the same manner as it would
the termination of any other Insurance Policy required under the related
Mortgage Loan documents. Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with a
resolution of such termination of an environmental insurance policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
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(a) The Special Servicer shall, subject to Sections 3.09(b)
through 3.09(d) and Section 6.11, exercise reasonable efforts, consistent with
the Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance all costs and expenses (other than costs or expenses that
would, if incurred, constitute a Nonrecoverable Servicing Advance) incurred by
the Special Servicer in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a). Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on behalf
of the Trust Fund, to make a bid on any Mortgaged Property at a foreclosure sale
or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in accordance with the Servicing
Standard and in its reasonable and good faith judgment taking into account the
factors described in Section 3.18(e) and the results of any appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the Master Servicer or the
Special Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, it may, at the
expense of the Trust Fund, have an appraisal performed with respect to such
property by an Independent Appraiser or other expert in real estate matters;
which appraisal shall take into account the factors specified in Section
3.18(e), including without limitation, any environmental, engineering or other
third party reports available, and other factors that a prudent real estate
appraiser would consider. With respect to each Required Appraisal Mortgage Loan,
the Special Servicer will be required to obtain a Required Appraisal (or with
respect to any Mortgage Loan with an outstanding principal balance less than
$1,000,000, an internal valuation performed by the Special Servicer) within 60
days of a Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an
appraisal meeting the requirements of a Required Appraisal was obtained for such
Required Appraisal Mortgage Loan within the prior 12 months and the Special
Servicer has no actual knowledge of a material adverse change in the condition
of the related Mortgaged Property in which case such appraisal may be a letter
update of the Required Appraisal) and thereafter shall obtain a Required
Appraisal (or with respect to any Mortgage Loan with an outstanding principal
balance less than $1,000,000, an internal valuation performed by the Special
Servicer) once every 12 months (or sooner if the Special Servicer has actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property) if such Mortgage Loan remains a Required Appraisal Mortgage Loan. The
Special Servicer will deliver a copy of each Required Appraisal (or letter
update or internal valuation) to the Master Servicer, the Controlling Class
Representative and the Trustee within 10 Business Days of obtaining such
Required Appraisal (or letter update or internal valuation). Subject to the
second paragraph of Section 3.03(c), the Master Servicer shall advance the cost
of such Required Appraisal; provided, however, that such expense will be subject
to reimbursement to the Master Servicer as a Servicing Advance out of the
Certificate Account pursuant to Section 3.05(a)(vi) and 3.05(a)(vii).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which may be withdrawn from the Certificate Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on any of REMIC I or REMIC II under the REMIC Provisions or cause either
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property by deed in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, made in accordance with the Servicing
Standard, be considered to hold title to, to be a "mortgagee-in-possession" of,
or to be an "owner" or "operator" of such Mortgaged Property within the meaning
of CERCLA or any comparable law (a "potentially responsible party"), unless (as
evidenced by an Officers' Certificate to such effect delivered to the Trustee
that shall specify all of the bases for such determination) the Special Servicer
has previously determined in accordance with the Servicing Standard, and based
on an Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments and
performed within six months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be delivered to the
Trustee, the Controlling Class Representative and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and regulations or, if such circumstances or conditions
are present for which any such action could reasonably be expected to be
required, that it would maximize the recovery to the Certificateholders on
a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such actions with respect to the affected
Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph shall be at the expense
of the Trust Fund; and if any such Environmental Assessment so warrants, the
Special Servicer shall perform such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied, the cost of which
shall be at the expense of the Trust Fund.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
thereof has not been satisfied with respect to any Mortgaged Property securing a
defaulted Mortgage Loan and there is no breach of a representation or warranty
requiring repurchase under the First Union Mortgage Loan Purchase Agreement or
the Bank of America Mortgage Loan Purchase Agreement, as applicable, the Special
Servicer shall take such action as is in accordance with the Servicing Standard
(other than proceeding against the Mortgaged Property) and, at such time as it
deems appropriate, may, on behalf of the Trustee, release all or a portion of
such Mortgaged Property from the lien of the related Mortgage; provided that, if
such Mortgage Loan has a then outstanding principal balance of greater than $1
million, then prior to the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage, (i) the Special Servicer shall
have notified the Rating Agencies, the Trustee, the Controlling Class
Representative and the Master Servicer in writing of its intention to so release
all or a portion of such Mortgaged Property and the bases for such intention,
(ii) the Trustee shall have notified the Certificateholders in writing of the
Special Servicer's intention to so release all or a portion of such Mortgaged
Property and (iii) the Holders of Certificates entitled to a majority of the
Voting Rights shall have consented to such release within 30 days of the
Trustee's distributing such notice (failure to respond by the end of such 30-day
period being deemed consent).
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative and the Trustee monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of all such
conditions and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to
reports of foreclosures and abandonments of any Mortgaged Property and the
information returns relating to any Mortgaged Property required by Sections
6050J and 6050P of the Code and each year deliver to the Trustee an Officers'
Certificate stating that such reports have been filed. Such reports shall be in
form and substance sufficient to meet the reporting requirements imposed by
Sections 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate (together with the
basis and back-up documentation for the determination) delivered to the Trustee,
the Controlling Class Representative and the Master Servicer no later than the
third Business Day following such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property.
SECTION 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files.
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(a) Upon the payment in full of any Mortgage Loan, or the receipt
by the Master Servicer of a notification that payment in full shall be escrowed
in a manner customary for such purposes, the Master Servicer shall promptly
notify the Trustee in writing, who shall release or cause the related Custodian
to release, by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee or related Custodian to the
Master Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11 Servicing Compensation.
----------------------
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such Mortgage Loan deemed
to be due on such REO Loan is computed and calculated on the basis of a 360-day
year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Master Servicing Fee
with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly, on a loan-by-loan basis, from payments of
interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Mortgage Loan or REO Loan out of that portion
of related Insurance Proceeds or Liquidation Proceeds allocable as recoveries of
interest, to the extent permitted by Section 3.05(a)(iii). The right to receive
the Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
(b) Additional servicing compensation in the form of: (i) all late
payment charges, Penalty Interest, assumption application fees, modification
fees for Mortgage Loan modifications made by the Master Servicer pursuant to
Section 3.20(i), charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees
(excluding Prepayment Premiums or Yield Maintenance Charges), in each case to
the extent actually paid by a Mortgagor with respect to a Mortgage Loan and
accrued during the time that such Mortgage Loan was not a Specially Serviced
Mortgage Loan, (ii) fifty percent (50%) of any assumption fee to the extent
actually paid by a Mortgagor with respect to any First Union Mortgage Loan,
other than a Specially Serviced Mortgage Loan, (iii) fifty percent (50%) of any
assumption fee on any assumption of a Specially Serviced Mortgage Loan that is a
First Union Mortgage Loan if the only Servicing Transfer Event is the transfer
of the related Mortgaged Property by the Mortgagor without the required
consents, and (iv) 100% of any assumption fee to the extent actually paid by a
Mortgagor with respect to a Bank of America Mortgage Loan, other than a
Specially Serviced Mortgage Loan, may be retained by the Master Servicer and are
not required to be deposited in the Certificate Account; provided that the
Master Servicer's right to receive late payment charges and Penalty Interest
pursuant to clause (i) above shall be limited to the portion of such items that
have not been applied to pay interest on Advances in respect of all of the
Mortgage Loans as provided in Sections 3.03(d) and 4.03(d). Penalty Interest or
late payment charges in respect of any Mortgage Loan which has accrued during
the period when the related Mortgage Loan is not a Specially Serviced Mortgage
Loan shall be additional compensation to the Master Servicer even if collected
during the period when the related Mortgage Loan is a Specialty Serviced
Mortgaged Loan. The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) Prepayment Interest Excesses (to the
extent not offset by Prepayment Interest Shortfalls); (ii) interest or other
income earned on deposits in the Certificate Account and the Interest Reserve
Account, in accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to each such account for each
Collection Period), and (iii) to the extent not required to be paid to any
Mortgagor under applicable law or the terms of the related Mortgage Loan, any
interest or other income earned on deposits in the Reserve Accounts and
Servicing Accounts maintained thereby. The Master Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of its Sub-Servicers and the premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, and the Master Servicer shall not be entitled to reimbursement therefor
except as expressly provided in this Agreement. The Master Servicer shall not
waive or agree to any discount of any portion of assumption fees to which the
Special Servicer is entitled.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue at
the Special Servicing Fee Rate and on the same principal amount respecting which
the related interest payment due on such Specially Serviced Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Special Servicing Fee
with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees
shall be payable monthly out of general collections on the Mortgage Loans, and
any REO Properties on deposit in the Certificate Account pursuant to Section
3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan (net of any portion of such collection payable or reimbursable to the
Master Servicer, the Special Servicer or the Trustee for any related unpaid or
unreimbursed Master Servicing Fees and/or Advances) received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee would become payable if
and when such Mortgage Loan again became a Corrected Mortgage Loan. If the
Special Servicer is terminated or resigns, it will retain the right to receive
any and all Workout Fees payable with respect to any Mortgage Loan that became a
Corrected Mortgage Loan during the period that it acted as Special Servicer and
remained a Corrected Mortgage Loan at the time of its termination or resignation
or if the Special Servicer resolved the circumstances and/or conditions causing
the Mortgage Loan to be a Specially Serviced Loan, but the Mortgage Loan had not
as of the time the Special Servicer is terminated or resigns become a Corrected
Mortgage Loan because the related borrower had not made three consecutive
monthly debt service payments (but had made the most recent monthly debt service
payment prior to the termination of the Special Servicer) and subsequently
becomes a Corrected Mortgage Loan as a result of making such three consecutive
payments. The successor Special Servicer will not be entitled to any portion of
those Workout Fees.
In addition, with respect to each Specially Serviced Mortgage Loan
and REO Loan (or Qualified Substitute Mortgage Loan substituted in lieu
thereof), the Special Servicer shall be entitled to the Principal Recovery Fee
payable out of, and calculated by application of the Principal Recovery Fee Rate
to, all amounts (whether in the form of payments of Liquidation Proceeds or REO
Revenues) received in respect of such Mortgage Loan (or, in the case of an REO
Loan, in respect of the related REO Property) and allocable as a recovery of
principal and interest in accordance with Section 3.02(b) or the definition of
"REO Loan", as applicable; provided that no Principal Recovery Fee shall be
payable in connection with, or out of (i) Insurance Proceeds and (ii)
Liquidation Proceeds resulting from receipt of condemnation proceeds or the
purchase of any Mortgage Loan or REO Property by a Mortgage Loan Seller pursuant
to the First Union Mortgage Loan Purchase Agreement or the Bank of America
Mortgage Loan Purchase Agreement, by the Majority Subordinate Certificateholder
pursuant to Section 3.18(b), by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c), or by the Master Servicer, the Special Servicer or
the Majority Subordinate Certificateholder pursuant to Section 9.01; and
provided further that no Principal Recovery Fee shall be payable (i) in
connection with a Periodic Payment received in connection with such Mortgage
Loan or (ii) to the extent a Workout Fee is payable concerning the Liquidation
Proceeds.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of: (i) all late
payment charges, Penalty Interest and assumption application fees received on or
with respect to Specially Serviced Mortgage Loans actually collected that
accrued during the time that the related Mortgage Loan was a Specially Serviced
Mortgage Loans, (ii) one hundred percent (100%) (or fifty percent (50%) if
Section 3.11(b)(iii) applies) of assumption fees collected on all Specially
Serviced Mortgage Loans, (iii) fifty percent (50%) of assumption fees collected
on any First Union Mortgage Loan other than a Specially Serviced Mortgage Loan,
and (iv) modification fees collected on all Mortgage Loans (other than
modifications made by the Master Servicer pursuant to Section 3.20(i)), in each
case to the extent actually paid by the related Mortgagor, shall be retained by
the Special Servicer or promptly paid to the Special Servicer by the Master
Servicer and shall not be required to be deposited in the Certificate Account
provided that the Special Servicer's right to receive late payment charges and
Penalty Interest pursuant to clause (i) above shall be limited to the portion of
such items that have not been applied to pay interest on Advances and property
inspection costs in respect of the related Mortgage Loan as provided in Sections
3.03(d), 3.12(a) and 4.03(d). The Special Servicer shall also be entitled to
additional servicing compensation in the form of: (i) interest or other income
earned on deposits in the REO Account, if established, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the REO Account for each Collection Period); and (ii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts maintained
by the Special Servicer. The Special Servicer shall be required to pay out of
its own funds all general and administrative expenses incurred by it in
connection with its servicing activities hereunder, and the Special Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
Section 3.05(a) if and to the extent such expenses are not payable directly out
of the Certificate Account or the REO Account
SECTION 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
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(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan (i) becomes a Specially Serviced Mortgage Loan or (ii) the
related Debt Service Coverage Ratio set forth in the Comparative Financial
Status Report is below 1.0x, provided that such expense shall be a reimbursable
first out of Penalty Interest and late payment charges otherwise payable to the
Special Servicer and received in the Collection Period during which such
inspection related expenses were incurred, then as an Additional Trust Fund
Expense. Each of the Master Servicer for each Mortgage Loan other than a
Specially Serviced Mortgage Loan or REO Loan and the Special Servicer for each
Specially Serviced Mortgage Loan and REO Loan shall at its expense perform or
cause to be performed an inspection of all the Mortgaged Properties at least
once per calendar year (or, in the case of Mortgage Loans (other than Specially
Serviced Mortgage Loans) with a then current principal balance of less than
$2,000,000, every other calendar year) beginning in 2002. The Special Servicer
and the Master Servicer shall each prepare (and, in the case of the Special
Servicer, shall deliver to the Master Servicer) a written report of each such
inspection performed by it that sets forth in detail the condition of the
Mortgaged Property and that specifies the existence of: (i) any sale, transfer
or abandonment of the Mortgaged Property of which it is aware, (ii) any change
in the condition or value of the Mortgaged Property that it, in its reasonable
judgment, considers material, or (iii) any visible waste committed on the
Mortgaged Property. The Master Servicer shall deliver such reports to the
Trustee and the Controlling Class Representative within 45 days of the related
inspection and the Trustee shall, subject to Section 3.15, make copies of all
such inspection reports available for review by Certificateholders and
Certificate Owners during normal business hours at the offices of the Trustee at
all times after Trustee's receipt thereof. Upon written request and at the
expense of the requesting party, the Trustee shall deliver copies of any such
inspection reports to Certificateholders and Certificate Owners. The Special
Servicer shall have the right to inspect or cause to be inspected (at its own
expense) every calendar year any Mortgaged Property related to a loan that is
not a Specially Serviced Mortgage Loan, provided that the Special Servicer
obtains the approval of the Master Servicer prior to such inspection, and
provides a copy of such inspection to the Master Servicer; and provided further
that the Master Servicer and the Special Servicer shall not both inspect a
Mortgaged Property that is not securing a Specially Serviced Mortgage Loan in
the same calendar year. If the Special Servicer performs such inspection, such
inspection shall satisfy the Master Servicer's inspection obligations pursuant
to this paragraph (a).
With respect to site inspection information, the Master Servicer
shall make such inquiry of any Mortgagor under any related Mortgage Loan as the
Special Servicer may reasonably request.
The Special Servicer shall, promptly after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, give written notice to the Master Servicer,
the Controlling Class Representative and the Trustee which shall include an
explanation as to the reasons such Mortgage Loan became a Specially Serviced
Mortgage Loan and the Special Servicer's plan for servicing such Mortgage Loan,
a copy of which notice shall be provided by the Trustee to each Rating Agency
and upon request to each Certificateholder and the Depositor.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties
providing the required information as of the end of the preceding calendar
month: (i) a CMSA Property File; (ii) a Comparative Financial Status Report and
(iii) CMSA Financial File. Not later than 5:00 p.m. (New York City time) on the
first Business Day following each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Mortgage Loans (and, if applicable, the related REO
Properties) (or, as to clause (iv) below, only with respect to Specially
Serviced Mortgage Loans) providing the required information as of such
Determination Date: (i) a Historical Liquidation Report; (ii) a Historical Loan
Modification Report; (iii) an REO Status Report, and (iv) a Delinquent Loan
Status Report. Not later than 4:00 p.m. (New York City time) on the second
Business Day of each calendar month, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer (in electronic format acceptable to the
Master Servicer and the Special Servicer) an Interim Delinquent Loan Status
Report.
(c) Not later than 4:00 p.m. (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee (in electronic format acceptable to the
Master Servicer and the Trustee) (A) the most recent Historical Loan
Modification Report, Historical Liquidation Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (B) a CMSA
Property File, Comparative Financial Status Report and CMSA Financial File, each
with the required information as of the end of the preceding calendar month (in
each case combining the reports prepared by the Special Servicer and the Master
Servicer); (C) a Delinquent Loan Status Report, each with the required
information as of such Determination Date (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); (D) a Watch List
Report with the required information as of such Determination Date; and (E) a
Monthly Advance Interest Report. Not later than 4:00 p.m. (New York City time)
on the third Business Day of each calendar month, the Master Servicer shall
deliver or cause to be delivered to the Trustee (in electronic format acceptable
to the Master Servicer and the Trustee) an Interim Delinquent Loan Status
Report. Not later than 4:00 p.m. (New York City time) on each P&I Advance Date,
the Master Servicer shall deliver or cause to be delivered to the Trustee (in
electronic format acceptable to the Master Servicer and the Trustee) an Updated
Collection Report.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12 in
an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d), and the Master Servicer and the Trustee with respect to
the reports set forth in Section 3.12(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee may,
absent manifest error, conclusively rely on the CMSA Loan Periodic Update File
to be provided by the Master Servicer pursuant to Section 4.02(b). In the case
of information or reports to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12, to the extent that such information is based on
reports to be provided by the Special Servicer pursuant to Section 3.12(b) and
this Section 3.12(d) and, to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(b) and this Section
3.12(d), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by this Section 3.12 to the
extent caused by the Special Servicer's failure to timely provide any report
required under Section 3.12(b) and this Section 3.12(d) of this Agreement.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans shall each consistent with the Servicing Standard, endeavor to obtain
quarterly and annual operating statements and rent rolls with respect to the
related Mortgage Loans and REO Properties, which efforts shall include in the
case of Mortgage Loans, a letter sent to the related Mortgagor each quarter
(followed up with telephone calls) requesting such quarterly and annual
operating statements and rent rolls until they are received to the extent such
action is consistent with applicable law and the related Mortgage Loan
documents.
The Special Servicer shall promptly following receipt, deliver
copies of the operating statements and rent rolls received or obtained by it to
the Master Servicer, and the Master Servicer shall deliver copies of the
operating statements and rent rolls received or obtained by it to the Rating
Agencies, the Trustee, the Special Servicer or the Controlling Class
Representative in each case (other than the Rating Agencies and the Controlling
Class Representative which shall be sent copies within 30 days following the
Master Servicer's receipt) upon request.
Within 30 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and, with respect to any NOI Adjustment
Worksheet prepared or updated by the Special Servicer, forward to the Master
Servicer, an NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the annual operating statements attached thereto as an exhibit).
Notwithstanding the foregoing, neither the Master Servicer nor the Special
Servicer shall be required to report on or analyze financial statements covering
the first calendar quarter of 2001.
The Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
Operating Statement Analysis for each Mortgaged Property and REO Property, as
applicable. The Operating Statement Analysis for each Mortgaged Property and REO
Property is to be updated by each of the Master Servicer and the Special
Servicer, as applicable, within thirty days after its respective receipt of
updated operating statements for such Mortgaged Property or REO Property, as the
case may be, but in no event less frequently than annually by June 30th of each
year. The Master Servicer and the Special Servicer shall each use the
"Normalized" column from the NOI Adjustment Worksheet for any Mortgaged Property
or REO Property, as the case may be, to update the corresponding Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO property, as the case may be, to prepare the
NOI Adjustment Worksheet for such property. Copies of Operating Statement
Analyses and NOI Adjustment Worksheets are to be made available by the Master
Servicer to the Trustee, the Special Servicer or the Controlling Class
Representative in each case upon request.
SECTION 3.13 Annual Statement as to Compliance.
---------------------------------
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Underwriters, the Controlling Class Representative, and the
Rating Agencies, and, in the case of the Special Servicer, to the Master
Servicer, on or before April 30 of each year, beginning April 30, 2002, an
Officers' Certificate stating, as to each signer thereof, that (i) a review of
the activities of the Master Servicer or the Special Servicer, as the case may
be, during the preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision, (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has fulfilled all of its obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and (iii) the
Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding qualification, or challenging the status, of REMIC I or REMIC
II as a REMIC under the REMIC Provisions or of the Grantor Trust as a "Grantor
Trust" for income tax purposes under the Grantor Trust Provisions from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. The Master Servicer
and Special Servicer shall deliver a copy of such Officer's Certificate to the
Depositor.
SECTION 3.14 Reports by Independent Public Accountants.
-----------------------------------------
On or before April 30 of each year, beginning April 30, 2002, each
of the Master Servicer and the Special Servicer at its expense shall cause a
firm of Independent public accountants (which may also render other services to
the Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee,
Underwriters, Rating Agencies, the Controlling Class Representative, Depositor
and, in the case of the Special Servicer, to the Master Servicer to the effect
that such firm has examined the servicing operations of the Master Servicer or
the Special Servicer, as the case may be, for the previous calendar year (except
that the first such report shall cover the period from the Closing Date through
December 31, 2001) and that, on the basis of such examination, conducted
substantially in compliance with USAP, such firm confirms that the Master
Servicer or the Special Servicer, as the case may be, complied with the minimum
servicing standards identified in USAP, in all material respects, except for
such significant exceptions or errors in records that, in the opinion of such
firm, the USAP requires it to report. In rendering such statement, such firm may
rely, as to matters relating to direct servicing of mortgage loans by
Sub-Servicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers (rendered within one year of such statement) of independent public
accountants with respect to the related Sub-Servicer.
SECTION 3.15 Access to Certain Information.
-----------------------------
(a) Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i)
below), the Special Servicer (with respect to the items in clauses (d), (e),
(f), (g), (h) and (i) below) and the Trustee (with respect to the items in
clause (b) and (i) below and to the extent any other items are in its
possession) shall make available at their respective offices primarily
responsible for administration of the Mortgage Loans (or in the case of ▇▇▇▇▇
Fargo Bank Minnesota, N.A., at its Corporate Trust Office, except with respect
to documents which constitute part of the Mortgage Files, which will be
maintained at its offices in Minnesota), during normal business hours, or send
to the requesting party, such party having been certified to the Trustee or the
Master Servicer as applicable in accordance with (a) and (b) in the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), for review by any Certificate Owner or
Certificateholder or any person identified by a Certificate Owner or
Certificateholder or its designated agent to the Trustee, the Master Servicer or
the Special Servicer, as the case may be, as a prospective transferee of any
Certificate or interest therein, the Trustee, the Rating Agencies, the
Underwriters and anyone specified thereby and the Depositor originals or copies
of the following items: (a) this Agreement and any amendments thereto, (b) all
Distribution Date Statements delivered to holders of the relevant Class of
Certificates since the Closing Date and all reports, statements and analyses
delivered by the Master Servicer since the Closing Date pursuant to Section
3.12(c), (c) all Officers' Certificates delivered by the Master Servicer or the
Special Servicer since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Master Servicer in respect of itself or
the Special Servicer since the Closing Date as described in Section 3.14, (e)
the most recent property inspection report prepared by or on behalf of the
Master Servicer in respect of each Mortgaged Property and any Environmental
Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged
Property annual operating statements and rent roll, if any, collected by or on
behalf of the Master Servicer, (g) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Special Servicer
and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the
Servicing File relating to each Mortgage Loan and (i) any and all Officers'
Certificates and other evidence delivered by the Master Servicer or the Special
Servicer, as the case may be, to support its determination that any Advance was,
or if made, would be, a Nonrecoverable Advance pursuant to Section 3.20(d)
including appraisals affixed thereto and any Required Appraisal prepared
pursuant to Section 3.09(a). Copies of any and all of the foregoing items will
be available from the Master Servicer, the Special Servicer or the Trustee, as
the case may be, upon request and shall be provided to any of the Rating
Agencies at no cost pursuant to their reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative, in connection with providing
access to or copies of any items in accordance with this Agreement, the Trustee
or the Master Servicer, as applicable, shall require: (a) in the case of
Certificate Owners and the Controlling Class Representative, a confirmation
executed by the requesting Person substantially in the form of Exhibit X-1
hereto (or such other form as may be reasonably acceptable to the Trustee or the
Master Servicer, as applicable) generally to the effect that such Person is a
beneficial holder of Book-Entry Certificates, or a representative of a
beneficial holder of Book-Entry Certificates, and, subject to the last sentence
of this paragraph, will keep such information confidential (except that such
Certificate Owner and the Controlling Class Representative may provide such
information to any other Person that holds or is contemplating the purchase of
any Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential); and (b) in the case of a prospective
purchaser of a Certificate or an interest therein, confirmation executed by the
requesting Person substantially in the form of Exhibit X-2 hereto (or such other
form as may be reasonably acceptable to the Trustee or the Master Servicer, as
applicable) generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information for use
in evaluating a possible investment in Certificates and, subject to the last
sentence of this paragraph, will otherwise keep such information confidential.
The Holders of the Certificates, by their acceptance thereof, and the
Controlling Class Representative, by its acceptance of its appointment, will be
deemed to have agreed, subject to the last sentence of this paragraph, to keep
such information confidential (except that any Holder may provide such
information obtained by it to any other Person that holds or is contemplating
the purchase of any Certificate or interest therein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential) and agrees not to use
such information in any manner that would violate federal, state or local
securities laws. Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner shall be
obligated to keep confidential any information received from the Trustee or the
Master Servicer, as applicable, pursuant to this Section 3.15 that has
previously been made available without a password via the Trustee's or the
Master Servicer's, as applicable, Internet Website or has previously been filed
with the Commission, and the Trustee or the Master Servicer, as applicable,
shall not require either of the certifications contemplated by the second
preceding sentence in connection with providing any information pursuant to this
Section 3.15 that has previously been made available without a password via the
Trustee's Internet Website or has previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to any
records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may but is not
required to, make available each month to any interested party (i) the
Distribution Date Statement via their respective Internet Websites, and (ii) as
a convenience for interested parties this Agreement on their respective Internet
Websites. In addition, the Trustee shall make available each month, on each
Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic
Update File, the CMSA loan setup file, the CMSA Bond File, the Monthly Advance
Interest Report and the CMSA Collateral Summary File to any interested party on
its Internet Website. The Trustee shall make available each month, on each
Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA
Property File and the CMSA Financial File to any Privileged Person via the
Trustee's Internet Website with the use of a password (or other comparable
restricted access mechanism) provided by the Trustee. The Trustee shall make
available each month, on the fourth Business Day of each calendar month, the
Interim Delinquent Loan Status Report to any interested party on its Internet
Website.
The Master Servicer may, but is not required to, make available each
month via its Internet Website (i) to any interested party, the Unrestricted
Servicer Reports, the CMSA Loan Setup File, and the CMSA Loan Periodic Update
File, and (ii) to any Privileged Person, with the use of a password provided by
the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File
and the CMSA Property File. Any (x) Restricted Servicer Report or Unrestricted
Servicer Report (other than the Interim Delinquent Loan Status Report and the
Updated Collection Report) that is not available on the Master Servicer's
Internet Website as described in the immediately preceding sentence by 5:00 p.m.
(New York City time) on the related Distribution Date, (y) Interim Delinquent
Loan Status Report that is not available on the Master Servicer's Internet
Website as described in the immediately preceding sentence by 5:00 p.m. (New
York City time) on the third Business Day of each calendar month, and (z)
Updated Collection Report that is not available on the Master Servicer's
Internet Website as described in the immediately preceding sentence by 5:00 p.m.
(New York City time) on the related P&I Advance Date, shall be provided (in
electronic format, or if electronic mail is unavailable, by facsimile) by the
Master Servicer (i) to the Controlling Class Representative and (ii) upon
request, to any Person otherwise entitled to access such report on the Master
Servicer's Internet Website.
In connection with providing access to the Trustee's Internet
Website or the Master Servicer's Internet Website, the Trustee or the Master
Servicer, as applicable, may require registration and the acceptance of a
disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the
Trustee, and such application states that the Applicants' desire to communicate
with other Holders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, send, at the Applicants' expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) From and after the later to occur of (i) the expiration of
ninety days after the Closing Date and (ii) the date on which the Trustee
receives notice from the Depositor that the last unsold allotment of
Certificates (if any) has been sold by the Underwriters, the Trustee shall also
make available to any Privileged Person, with the use of a password (or other
comparable restricted access mechanism) provided by the Trustee to such
Privileged Person, the Investor Q&A Forum. The "Investor Q&A Forum" shall be a
service available on a portion of the Trustee's Internet Website. The structure,
form, legends and links of such portion of the Trustee's Internet Website shall
be subject to the approval of the Depositor prior to implementation of the
Investor Q&A Forum and may not be altered, changed or modified without the
approval of the Depositor. The Investor Q&A Forum shall permit Privileged
Persons with the use of a password (or other comparable restricted access
mechanism) to (i) submit questions to the Trustee via e-mail, which questions
(A) relate to the Mortgage Loans or the Mortgaged Properties and (B) are
requesting information that is of the type included in the reports provided by
the Master Servicer or the Special Servicer pursuant to Section 3.12 ("Investor
Inquiries"), and (ii) view Investor Inquiries that have been previously
submitted and answered, together with the answers thereto. Upon receipt of a
submission from a user, the Trustee shall forward the Investor Inquiry to either
the Master Servicer (if such Investor Inquiry relates to a Mortgage Loan that is
not a Specially Serviced Mortgage Loan) or the Special Servicer (if such
Investor Inquiry relates to a Specially Serviced Mortgage Loan) within four
Business Hours of receipt thereof. Within five Business Days following receipt
of an Investor Inquiry from the Trustee by the Master Servicer (with respect to
Investor Inquiries that relate to Mortgage Loans that are not Specially Serviced
Mortgage Loans) or within five Business Days following receipt of an Investor
Inquiry from the Trustee by the Special Servicer (with respect to Investor
Inquiries that relate to Specially Serviced Mortgage Loans), the Master Servicer
or the Special Servicer, as applicable, unless it determines not to answer such
Investor Inquiry as provided below, shall reply to the Investor Inquiry with (A)
the answer to such Investor Inquiry, or (B) if such Investor Inquiry cannot
reasonably be answered within such five Business Days, such longer period of
time as is necessary to answer such Investor Inquiry, provided such longer
period of time shall be commercially reasonable (which it shall then be required
to adhere to). Upon receipt of any such answer from the Master Servicer or the
Special Servicer, the Trustee shall post (within four Business Hours of receipt
of such answer) such Investor Inquiry and the related answer (or a statement
concerning the additional time necessary until such answer shall be made
available) to the Trustee's Website to be made available to Privileged Persons
with the use of a password (or other comparable restricted access mechanism). If
the Master Servicer or the Special Servicer determines, in its respective sole
discretion, that (i) any Investor Inquiry is not of a type described above, (ii)
answering any Investor Inquiry would not be in the best interests of the Trust
Fund and/or the Certificateholders, (iii) answering any Investor Inquiry would
be in violation of applicable law or the applicable Mortgage Loan documents, or
(iv) answering any Investor Inquiry is otherwise, for any reason, not advisable
to answer, it shall not be required to answer such Investor Inquiry, and shall
promptly notify the Trustee, who shall notify the Person who submitted such
Investor Inquiry. Any notice by the Trustee to the Person who submitted an
Investor Inquiry that the Master Servicer or the Special Servicer, as
applicable, has declined to answer such Investor Inquiry shall include the
following statement: "Because the Pooling and Servicing Agreement provides that
the Master Servicer and the Special Servicer shall not answer an Investor
Inquiry if it determines, in its respective sole discretion, that (i) any
Investor Inquiry is not of a type described in the Pooling and Servicing
Agreement, (ii) answering any Investor Inquiry would not be in the best
interests of the Trust Fund and/or the Certificateholders, (iii) answering any
Investor Inquiry would be in violation of applicable law or the applicable
Mortgage Loan documents, or (iv) answering any Investor Inquiry is otherwise,
for any reason, not advisable to answer, no inference should be drawn from the
fact that the Master Servicer or the Special Servicer has declined to answer the
Investor Inquiry."
The Master Servicer and the Special Servicer shall not be required
to confirm, represent or warrant the accuracy or completeness of any other
Person's information or report included in any communication from the Master
Servicer or the Special Servicer under this Agreement. The Trustee shall not be
liable for the dissemination of information in accordance with this Section
3.15(c). The Trustee makes no representations or warranties as to the accuracy
or completeness of any report, document, question, answer, or other information
made available on the Trustee's Website and assumes no responsibility therefor.
In addition, the Trustee, the Master Servicer and the Special Servicer may
disclaim responsibility for any information distributed by the Trustee, the
Master Servicer or the Special Servicer, respectively, for which it is not the
original source.
SECTION 3.16 Title to REO Property; REO Account.
----------------------------------
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third year following the calendar year
in which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies for, more
than sixty days prior to the end of such third succeeding year, and is granted
an extension of time (an "REO Extension") by the Internal Revenue Service to
sell such REO Property or (ii) obtains for the Trustee an Opinion of Counsel,
addressed to the Trustee, the Special Servicer and the Master Servicer, to the
effect that the holding by REMIC I of such REO Property subsequent to the end of
such third succeeding year will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) of either
REMIC I or REMIC II or cause either REMIC I or REMIC II to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Special Servicer
is granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall
first be payable from the related REO Account to the extent of available funds
and then be a Servicing Advance by the Master Servicer.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), held on behalf of the Trustee in trust for
the benefit of the Certificateholders, for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of an REO Property within 2 Business Days of
receipt. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any Collection Period). The Special Servicer shall give
written notice to the Trustee and the Master Servicer of the location of the REO
Account when first established and of the new location of the REO Account prior
to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property (including any monthly reserve or escrow
amounts necessary to accumulate sufficient funds for taxes, insurance and
anticipated capital expenditures (the "Impound Reserve")). On each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit into
the Certificate Account or deliver to the Master Servicer or such other Person
as may be directed by the Master Servicer (which shall deposit such amounts into
the Certificate Account) the aggregate of all amounts received in respect of
each REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that in addition to the Impound Reserve the Special Servicer may retain
in the REO Account such portion of proceeds and collections as may be necessary
to maintain a reserve of sufficient funds for the proper operation, management
and maintenance of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and other related
expenses).
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17 Management of REO Property.
--------------------------
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions (such tax referred to herein as
an "REO Tax"), such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided, that in the good faith and reasonable judgment of the
Special Servicer, such alternative is commercially feasible and would
result in a greater net recovery on a present value basis than earning
income subject to an REO Tax) acquire such Mortgaged Property as REO
Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that such method of operation is commercially feasible and would result in
a greater net recovery on a present value basis than leasing or other
method of operating the REO Property that would not incur an REO Tax, the
Special Servicer shall deliver to the REMIC Administrator, in writing, a
proposed plan (the "Proposed Plan") to manage such property as REO
Property. Such plan shall include potential sources of income, and to the
extent commercially feasible, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of such plan,
the REMIC Administrator shall consult with the Special Servicer and shall
advise the Special Servicer of the REMIC Administrator's federal income tax
reporting position with respect to the various sources of income that the
Trust Fund would derive under the Proposed Plan. In addition, the REMIC
Administrator shall (to the extent reasonably possible) advise the Special
Servicer of the estimated amount of taxes that the Trust Fund would be
required to pay with respect to each such source of income. After receiving
the information described in the two preceding sentences from the REMIC
Administrator, the Special Servicer shall either (A) implement the Proposed
Plan (after acquiring the respective Mortgaged Property as REO Property) or
(B) manage and operate such property in a manner that would not result in
the imposition of an REO Tax on the income derived from such property. All
of the REMIC Administrator's expenses (including any fees and expenses of
counsel or other experts reasonably retained by it) incurred pursuant to
this section shall be reimbursed to it from the Trust Fund in accordance
with Section 10.01(f).
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and in any case on
the good faith and reasonable judgment of the Special Servicer as to which means
would be in the best interest of the Certificateholders by maximizing (to the
extent commercially feasible and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers and asset managers operating acquired mortgaged
property comparable to the respective Mortgaged Property. Both the Special
Servicer and the REMIC Administrator may, at the expense of the Trust Fund
payable pursuant to Section 3.05(a)(xiii) consult with counsel.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or either result in the receipt by REMIC I of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management, maintenance and disposition of such REO
Property, including without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in the preceding
sentence with respect to such REO Property, the Master Servicer, subject to the
second paragraph of Section 3.03(c), shall make Servicing Advances in such
amounts as are necessary for such purposes unless (as evidenced by an Officers'
Certificate delivered to the Trustee) the Master Servicer would not make such
advances if the Master Servicer owned such REO Property or the Master Servicer
determines, in accordance with the Servicing Standard, that such payment would
be a Nonrecoverable Advance; provided, however, that the Master Servicer may
make any such Servicing Advance without regard to recoverability if it is a
necessary fee or expense incurred in connection with the defense or prosecution
of legal proceedings. A copy of any Officers' Certificate prepared in accordance
with this Section shall be delivered by the Master Servicer to the Controlling
Class Representative upon request (or, absent request, any such Officers'
Certificates shall be delivered to the Controlling Class Representative on no
less than a quarterly basis).
(c) Unless Section 3.17 (a)(i) applies, the Special Servicer shall
contract with any Independent Contractor for the operation and management of any
REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, without limitation, those listed in Section 3.17(b) above, and
(B) except to the extent that such revenues are derived from any services
rendered by the Independent Contractor to tenants of the REO Property that
are not customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the Treasury
Regulations or any successor provision), remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18 Sale of Mortgage Loans and REO Properties.
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(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) Subject to Section 2.03(a), if the Special Servicer has
determined in good faith, and after making reasonable efforts to specially
service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will
become subject to foreclosure proceedings, the Special Servicer shall promptly
so notify in writing the Trustee and the Master Servicer, and the Trustee,
following its receipt of such notice, shall, within 10 days after receipt of
such notice, notify the Majority Subordinate Certificateholder. The Majority
Subordinate Certificateholder may at its option purchase from the Trust Fund, at
a price equal to the Purchase Price, any such Mortgage Loan. The Purchase Price
for any Mortgage Loan purchased under this paragraph (b) shall be deposited into
the Certificate Account, and the Custodian, upon receipt of an Officers'
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Majority Subordinate
Certificateholder the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Majority
Subordinate Certificateholder ownership of such Mortgage Loan. In connection
with any such purchase, the Special Servicer shall deliver the related Servicing
File to the Majority Subordinate Certificateholder.
(c) If the Majority Subordinate Certificateholder has not
purchased any Defaulted Mortgage Loan within 30 days of its having received
notice in respect thereof pursuant to Section 3.18(b) above, either the Master
Servicer or the Special Servicer (with preference given to the Special Servicer)
may at its option purchase such Mortgage Loan from the Trust Fund, at a price
equal to the Purchase Price. The Purchase Price for any such Mortgage Loan
purchased under this paragraph (c) shall be deposited into the Certificate
Account, and the Custodian, upon receipt of an Officers' Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the Master Servicer or the Special Servicer, as
applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Master Servicer or
the Special Servicer, as applicable, the ownership of such Mortgage Loan. In
connection with any such purchase by the Master Servicer, the Special Servicer
shall deliver the related Servicing File to the Master Servicer.
(d) Subject to Section 6.11, the Special Servicer may offer to
sell any Defaulted Mortgage Loan not otherwise purchased pursuant to Sections
3.18(b) and 3.18(c) above or pursuant to Section 3.18(i), if and when the
Special Servicer determines, consistent with the Servicing Standard, that such a
sale would be in the best economic interests of the Trust Fund. Such offer shall
be made in a commercially reasonable manner (which, for purposes hereof,
includes an offer to sell without representation or warranty other than
customary warranties of title and condition, if liability for breach thereof is
limited to recourse against the Trust Fund) for a period of not less than 10
days. Unless the Special Servicer determines that acceptance of any bid would
not be in the best economic interests of the Certificateholders, the Special
Servicer shall accept the highest cash bid received from any Person that
constitutes a fair price for such Mortgage Loan. In the absence of any bid
determined as provided below to be fair, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09.
Subject to Section 6.11, the Special Servicer shall use its best
efforts to solicit bids for each REO Property in such manner as will be
reasonably likely to realize a fair price within the time period provided for by
Section 3.16(a). The Special Servicer shall accept the first (and, if multiple
bids are received contemporaneously or subsequently, the highest, provided that
the Special Servicer is not obligated to the first bidder) cash bid received
from any Person that constitutes a fair price for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any REO Property within the time constraints imposed by Section
3.16(a), the Special Servicer shall dispose of such REO Property upon such terms
and conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master Servicer
not less than five Business Days' prior written notice of its intention to sell
any Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer (except as
otherwise provided below in this Section 3.18(e)). In determining whether any
bid received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Special Servicer shall be supplied with and
may rely on a narrative appraisal by an Independent Appraiser, prepared at the
expense of the Trust Fund, retained by the Special Servicer. The Special
Servicer may rely on a certification of any bidder to the effect that such
bidder is not an Interested Person. Such appraiser shall be selected by: (i) the
Special Servicer if neither the Special Servicer nor any Affiliate thereof is
bidding with respect to a Defaulted Mortgage Loan or REO Property; (ii) the
Master Servicer if the Special Servicer or any Affiliate thereof is bidding and
the Special Servicer is not an Affiliate of the Master Servicer; or (iii) the
Trustee if the Master Servicer and the Special Servicer are Affiliates and the
Master Servicer or Special Servicer or any Affiliate thereof is bidding. The
Master Servicer shall not bid with respect to a Defaulted Mortgage Loan or REO
Property if the Special Servicer or any Affiliate thereof has informed it that
the Special Servicer intends to submit a bid. Where any Interested Person is
among those bidding with respect to a Mortgage Loan or REO Property, the Special
Servicer shall require that all bids be submitted in writing and be accompanied
by a refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person or
from an Interested Person other than the Special Servicer, constitutes a fair
price for any such Mortgage Loan or REO Property, the Special Servicer shall
take into account (in addition to the results of any appraisal described above
and any appraisal that it may have obtained pursuant to Section 3.09(a)), and
any appraiser or other expert in real estate matters shall be instructed to take
into account, as applicable, among other factors, the period and amount of any
delinquency on the affected Mortgage Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or
REO Property shall in all cases be deemed a fair price. Notwithstanding the
other provisions of this Section 3.18 (but excluding a purchase pursuant to
Section 3.18(c)), no cash bid from the Master Servicer, Special Servicer or any
of their Affiliates thereof shall constitute a fair price for any Defaulted
Mortgage Loan or REO Property unless such bid is the highest bid received and at
least two independent bids (not including the bid of the Master Servicer,
Special Servicer or any Affiliate) have been received. In the event the bid of
the Special Servicer or any Affiliate is the only bid received or is the higher
of only two bids received, then additional bids shall be solicited. If an
additional bid or bids are received and the original bid of the Special Servicer
or any Affiliate is the highest of all bids received, then the bid of the
Special Servicer or such Affiliate shall no longer be deemed not to constitute a
fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above and Section
6.11, the Special Servicer shall act on behalf of the Trustee in negotiating
with independent third parties and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, and the collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge prospective bidders, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or evaluating
bids without obligation to deposit such amounts into the Certificate Account.
Any sale of a Defaulted Mortgage Loan or any REO Property shall be final,
without recourse to the Trustee or the Trust Fund and without representations
and warranties of title and condition, unless liability for breach thereof is
limited to recourse against the Trust Fund, and if such sale is consummated in
accordance with the terms of this Agreement, neither the Special Servicer nor
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
shall be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(h) The Special Servicer shall not be obligated by any of the
foregoing paragraphs of this Section 3.18 to accept the highest bid if the
Special Servicer determines, in accordance with the Servicing Standard, that
rejection of such bid would be in the best interests of the Certificateholders.
In addition, the Special Servicer may accept a lower bid (from other than itself
or an Affiliate) if it determines, in accordance with the Servicing Standard,
that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations or the terms offered by the
prospective buyer making the lower bid are more favorable).
SECTION 3.19 Additional Obligations of Master Servicer and
Special Servicer.
---------------------------------------------
(a) The Master Servicer shall deposit in the Certificate Account
on each P&I Advance Date, without any right of reimbursement therefor (x) with
respect to any Mortgage Loans (other than a Specially Serviced Mortgage Loan)
that do not allow prepayment on a day other than the Due Date, an amount equal
to the lesser of (i) the aggregate of Prepayment Interest Shortfalls experienced
during the related Collection Period with respect to such Mortgage Loans as a
result of voluntary Principal Prepayments, and (ii) the sum of (A) the Master
Servicing Fee (up to a Master Servicing Fee Rate of 0.025% per annum) received
by the Master Servicer during such Collection Period, other than on any Mortgage
Loan covered under (y) below, (B) investment income earned by the Master
Servicer on the related Principal Prepayments during the most recently ended
Collection Period, and (C) Prepayment Interest Excesses received during the most
recently ended Collection Period, and (y) with respect to each Mortgage Loan
(other than a Specially Serviced Mortgage Loan) that allows principal prepayment
to be made on a date other than a Due Date, that was subject to a voluntary
Principal Prepayment during the most recently ended Collection Period creating a
Prepayment Interest Shortfall, an amount equal to the lesser of (i) the sum of
(A) the Master Servicing Fee (up to a Master Servicing Fee Rate of .025% per
annum) received by the Master Servicer during such Collection Period on such
Mortgage Loan and (B) investment income earned by the Master Servicer on the
related Principal Prepayment during the most recently ended Collection Period,
and (ii) the amount of the related Prepayment Interest Shortfall.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor in writing of the transfer of such Mortgage Loan to the Trust Fund
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
-----------------------------------------------
(a) Subject to Sections 3.20(b) through 3.20(l) below and further
subject to Sections 3.08(b) and 6.11, the Master Servicer (to the extent
provided in Section 3.02(a) and Section 3.20(i) below) and the Special Servicer
may, on behalf of the Trustee, agree to any modification, waiver or amendment of
any term of any Mortgage Loan (including, subject to Section 3.20(i), the lease
reviews and lease consents related thereto) without the consent of the Trustee
or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan
(including, subject to Section 3.20(i), the lease reviews and lease consents
related thereto) shall be in writing and shall be considered and effected in
accordance with the Servicing Standard; provided however, that 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
any Mortgage Loan not otherwise permitted by this Section 3.20 that would
constitute a "significant modification" of such Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b).
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest and amounts payable as
additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released other than in connection with a taking of all or part of the
related Mortgaged Property or REO Property by exercise of the power of
eminent domain or condemnation or casualty or hazard losses with respect to
such Mortgaged Property or REO Property; or
(iv) if such Mortgage Loan is equal to or in excess of 5% of the
then aggregate current principal balances of all Mortgage Loans or
$20,000,000, permit the transfer or transfers of equity interests in the
borrower or any equity owner of the borrower that would result, in the
aggregate during the term of the related Mortgage Loan, in a transfer
greater than 49% of the total interest in the borrower and/or any equity
owner of the borrower or a transfer of voting control in the borrower of an
equity owner of the borrower without the prior written confirmation from
each Rating Agency that such changes will not result in the qualification,
downgrade or withdrawal to the ratings then assigned to the Certificates;
or
(v) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), and the rights of the Controlling Class
Representative set forth in Section 6.11, the Special Servicer may (i) reduce
the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Periodic Payment on any Specially Serviced
Mortgage Loan, including by way of a reduction in the related Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any Mortgage Note or
Mortgage relating to a Specially Serviced Mortgage Loan or (iv) accept a
Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout
Period; provided that (A) the related Mortgagor is in default with respect to
the Specially Serviced Mortgage Loan or, in the reasonable, good faith judgment
of the Special Servicer, such default is reasonably foreseeable, and (B) in the
reasonable, good faith judgment of the Special Servicer, such modification would
increase the recovery on the Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate). In the case of every other modification, waiver or consent, the Special
Servicer shall determine and may rely on an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the Trust Fund to the extent not paid by the
related Mortgagor) to the effect that such modification, waiver or amendment
would not both (1) effect an exchange or reissuance of the Mortgage Loan under
Treasury Regulations Section 1.860G-2(b) of the Code and (2) cause REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after the
Startup Day under the REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the
third paragraph of this Section 3.20(d), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and the Special Servicer has obtained an
appraisal in accordance with the standards of the Appraisal Institute of the
related Mortgaged Property, performed by an Independent Appraiser, in connection
with such extension, which appraisal supports the determination of the Special
Servicer contemplated by clause (B) of the proviso to the immediately preceding
paragraph.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of any Mortgage Loan which has
a Mortgage Rate below the prevailing interest rate for comparable loans at the
time of such modification as determined by the Special Servicer, unless (A) such
Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make
the Balloon Payment at its Stated Maturity Date and (C) such Balloon Loan is not
a Specially Serviced Mortgage Loan (other than by reason of the failure to make
its Balloon Payment) and has not been delinquent with respect to a Periodic
Payment (other than the Balloon Payment) in the preceding twelve months, in
which case the Special Servicer may permit up to three one-year extensions at
the existing Mortgage Rate for such Mortgage Loan (provided that such limitation
of extensions made at below market rate shall not limit the ability of the
Special Servicer to extend the maturity date of any Mortgage Loan at an interest
rate at or in excess to the prevailing rate for comparable loans at the time of
such modification), (iii) if the Mortgage Loan is secured by a Ground Lease (and
not by the corresponding fee simple interest), extend the maturity date of such
Mortgage Loan beyond a date which is less than 20 years prior to the expiration
of the term of such Ground Lease; (iv) reduce the Mortgage Rate to a rate below
the prevailing interest rate for comparable loans at the time of such
modification, as determined by the Special Servicer; or (v) defer interest due
on any Mortgage Loan in excess of 10% of the Stated Principal Balance of such
Mortgage Loan or defer the collection of interest on any Mortgage Loan without
accruing interest on such deferred interest at a rate at least equal to the
Mortgage Rate of such Mortgage Loan.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(d) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall append to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in no way limit
the Special Servicer's ability to charge and collect from the Mortgagor costs
otherwise collectible under the terms of the related Mortgage Note and this
Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below, the
Master Servicer may, as a condition to granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, provided such fee
would not itself be a "significant modification" pursuant to Treasury
Regulations Section 1.1001-3(e)(2)and (ii) any related costs and expenses
incurred by it. In no event shall the Special Servicer be entitled to payment
for such fees or expenses unless such payment is collected from the related
Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related Sub-Servicers, the Trustee, the Controlling Class Representative and the
Rating Agencies, in writing, of any material modification, waiver or amendment
of any term of any Mortgage Loan (including fees charged the Mortgagor) and the
date thereof, and shall deliver to the Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. Copies of each agreement whereby
any such modification, waiver or amendment of any term of any Mortgage Loan is
effected shall be made available for review upon prior request during normal
business hours at the offices of the Special Servicer pursuant to Section
3.15(g) hereof.
(h) The Master Servicer shall not permit defeasance of any
Mortgage Loan (x) on or before the earliest date on which defeasance is
permitted under the terms of such Mortgage Loan and (y) to the extent
inconsistent with the terms of such Mortgage Loan, and if the terms of the
Mortgage Loan grant the Master Servicer the right to require defeasance, the
Master Servicer shall act in accordance with the Servicing Standard to require
defeasance. Unless and to the extent the Master Servicer is precluded from
preventing such defeasance by the related Mortgage Loan documents or otherwise
(provided that the Master Servicer shall not cause either REMIC created
hereunder to fail to qualify as a REMIC, and provided further, the Master
Servicer may rely on an Opinion of Counsel as provided for in (ii) below), the
Master Servicer will not permit defeasance of any Mortgage Loan, unless, (i) the
defeasance collateral consists of "Government Securities" within the meaning of
the Investment Company Act of 1940, (ii) the Master Servicer has determined that
the defeasance will not result in an Adverse REMIC Event (provided that the
Master Servicer shall be entitled to rely conclusively on an Opinion of Counsel
to that effect), (iii) the Master Servicer has notified the Rating Agencies,
(iv) each Rating Agency has confirmed that such defeasance will not result in
the qualification, downgrade or withdrawal of the rating then assigned to any
Class of Certificates to which a rating has been assigned by either Rating
Agency, (v) the Master Servicer has requested and received from the related
Mortgagor (A) an Opinion of Counsel generally to the effect that the Trustee
will have a perfected, first priority security interest in such defeasance
collateral and (B) written confirmation from a firm of Independent accountants
stating that payments made on such defeasance collateral in accordance with the
terms thereof will be sufficient to pay the subject Mortgage Loan in full on or
before its Stated Maturity Date and in accordance with the Periodic Payment (or,
in the case of an ARD Loan, on or before its Anticipated Repayment Date) and to
timely pay each Periodic Payment scheduled to be due prior thereto but after the
defeasance and (vi) a single purpose entity (as defined below) is designated to
assume the Mortgage Loan and own the defeasance collateral; provided that, if
under the terms of the related Mortgage Loan documents, the related Mortgagor
delivers cash to purchase the defeasance collateral rather than the defeasance
collateral itself, the Master Servicer shall purchase the U.S. government
obligations contemplated by the related Mortgage Loan documents. Subsequent to
the second anniversary of the Closing Date, to the extent that the Master
Servicer can, in accordance with the related Mortgage Loan documents, require
defeasance of any Mortgage Loan in lieu of accepting a prepayment of principal
thereunder, including a prepayment of principal accompanied by a Prepayment
Premium or Yield Maintenance Charge, the Master Servicer shall, to the extent it
is consistent with the Servicing Standard, require such defeasance, provided
that the conditions set forth in clauses (i) through (vi) of the preceding
sentence have been satisfied. Any customary and reasonable out-of-pocket expense
incurred by the Master Servicer pursuant to this Section 3.20(h) shall be paid
by the Mortgagor of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents, and otherwise such expenses shall be recoverable as a Servicing
Advance. Notwithstanding the foregoing, if at any time, a court with
jurisdiction in the matter shall hold that the related Mortgagor may obtain a
release of the subject Mortgaged Property but is not obligated to deliver the
full amount of the defeasance collateral contemplated by the related Mortgage
Loan documents (or cash sufficient to purchase such defeasance collateral), then
the Master Servicer shall (i) if consistent with the related Mortgage Loan
documents, refuse to allow the defeasance of the Mortgage Loan or (ii) if the
Master Servicer cannot so refuse and if the related Mortgagor has delivered cash
to purchase the defeasance collateral, the Master Servicer shall either (A) buy
such defeasance collateral or (B) prepay the Mortgage Loan, in either case, in
accordance with the Servicing Standard. For purposes of this paragraph, a
"single purpose entity" shall mean a Person, other than an individual, whose
organization documents provide as follows: it is formed solely for the purpose
of owning and operating a single property, assuming a Mortgage Loan and owning
and pledging the Defeasance Collateral; it may not engage in any business
unrelated to such property and the financing thereof; it does not have and may
not own any assets other than those related to its interest in the property or
the financing thereof and may not incur any indebtedness other than as permitted
by the related Mortgage; it shall maintain its own books, records and accounts,
in each case which are separate and apart from the books, records and accounts
of any other person; it shall hold regular meetings, as appropriate, to conduct
its business, and shall observe all entity-level formalities and record keeping;
it shall conduct business in its own name and use separate stationery, invoices
and checks; it may not guarantee or assume the debts or obligations of any other
person; it shall not commingle its assets or funds with those of any other
person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with affiliates on an arm's
length basis pursuant to written agreements; and it shall hold itself out as
being a legal entity, separate and apart from any other person. The single
purpose entity organizational documents shall provide that any dissolution and
winding up or insolvency filing for such entity requires the unanimous consent
of all partners or members, as applicable, and that such documents may not be
amended with respect to the single purpose entity requirements during the term
of the Mortgage Loan.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage
Loan and subject to the rights of the Special Servicer set forth in this Section
3.20, the Master Servicer shall be responsible for any request by a Mortgagor
for the consent of the mortgagee for a modification, waiver or amendment of any
term with respect to:
(i) Approving routine leasing activity (including any subordination,
standstill and attornment agreements) with respect to leases for less than
the lesser of (a) 30,000 square feet and (b) 20% of the related Mortgaged
Property;
(ii) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iii) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (1) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (2) provides for the payment of any material
expenses to any affiliate of the Mortgagor (other than the payment of a
management fee to any property manager if such management fee is no more
than the management fee in effect on the Cut-off Date);
(iv) Subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a specified
number of days notice prior to a Principal Prepayment; and
(v) Approving certain consents with respect to right-of-ways and
easements and consent to subordination of the related Mortgage Loan to such
easements or right-of-ways.
(j) [Reserved].
(k) To the extent that either the Master Servicer or Special
Servicer waives any Penalty Interest or late charge in respect of any Mortgage
Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the respective
amounts of additional servicing compensation payable to the Master Servicer and
the Special Servicer under Section 3.11 out of such Penalty Interest or late
payment charges shall be reduced proportionately, based upon the respective
amounts that had been payable thereto out of such Penalty Interest or late
payment charges immediately prior to such waiver.
(l) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall take
the following action unless it has received prior written confirmation (the cost
of which shall be paid by the related Mortgagor, if so allowed by the terms of
the related loan documents) from the Rating Agencies that such action will not
result in a qualification, downgrade or withdrawal of any of the ratings
assigned by such Rating Agency to the Certificates:
(i) With respect to any Mortgaged Property that secures a Mortgage
Loan with an unpaid principal balance that is at least equal to five
percent (5%) of the then aggregate principal balance of all Mortgage Loans
or $20,000,000, the giving of any consent, approval or direction regarding
the termination of the related property manager or the designation of any
replacement property manager; and
(ii) With respect to each Mortgage Loan with an unpaid principal
balance that is equal to or greater than (A) two percent (2%) of the then
aggregate principal balance of all the Mortgage Loans or (B) $10,000,000
and which is secured by a Mortgaged Property which is a hospitality
property, the giving of any consent to any change in the franchise
affiliation of such Mortgaged Property.
SECTION 3.21 Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
---------------------------------------------
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall promptly notify the
Trustee and the Controlling Class Representative, and if the Master Servicer is
not also the Special Servicer, the Master Servicer shall immediately give notice
thereof, and shall deliver or cause to be delivered a copy of the related
Mortgage File and Servicing File, to the Special Servicer and shall use
reasonable efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, the Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
Notwithstanding the occurrence of a Servicing Transfer Event, the Master
Servicer shall continue to receive payments on such Mortgage Loan (including
amounts collected by the Special Servicer).
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof to the
Master Servicer and the Controlling Class Representative, and shall return the
related Mortgage File and Servicing File and all other information, documents
and records that were not part of the Servicing File when it was delivered to
the Special Servicer within five Business Days of the occurrence, to the Master
Servicer (or such other Person as may be directed by the Master Servicer) and
upon giving such notice, and returning such Servicing File, to the Master
Servicer (or such other Person as may be directed by the Master Servicer), the
Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and copies of
any additional related Mortgage Loan information, including correspondence with
the related Mortgagor.
(c) On or before each Determination Date, the Special Servicer
shall deliver to the Master Servicer and each Rating Agency (or such other
Person as may be directed by the Master Servicer) a statement in writing and in
computer readable format (the form of such statement to be agreed upon by the
Master Servicer) describing, on a loan-by-loan and property-by-property basis,
(1) insofar as it relates to Specially Serviced Mortgage Loans and REO
Properties, the information described in clauses (x) through (xiii) of Section
4.02(a) and, insofar as it relates to the Special Servicer, the information
described in clauses (xxiii), (xxiv) and (xxv) of Section 4.02(a), (2) the
amount of all payments, Insurance Proceeds and Liquidation Proceeds received,
and the amount of any Realized Loss incurred, with respect to each Specially
Serviced Mortgage Loan during the related Collection Period, and the amount of
all REO Revenues, Insurance Proceeds and Liquidation Proceeds received, and the
amount of any Realized Loss incurred, with respect to each REO Property during
the related Collection Period, (3) the amount, purpose and date of all Servicing
Advances made by the Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Property during the related Collection Period and (4) such
additional information relating to the Specially Serviced Mortgage Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer shall maintain ongoing
payment records with respect to each of the Specially Serviced Mortgage Loans
and REO Properties and shall provide the Special Servicer with any information
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
(d) No later than 30 days after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall deliver to each
Rating Agency, the Trustee, the Master Servicer and the Controlling Class
Representative, a report (the "Asset Status Report") with respect to such Loan
and the related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Specially Serviced Mortgage Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgage Property together with the
assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status
Report, the Controlling Class Representative does not disapprove such Asset
Status Report in writing, the Special Servicer shall implement the recommended
action as outlined in such Asset Status Report; provided, however, that the
Special Servicer may not take any action that is contrary to applicable law, the
Servicing Standard, or the terms of the applicable Mortgage Loan documents. If
the Controlling Class Representative disapproves such Asset Status Report, the
Special Servicer will revise such Asset Status Report and deliver to the
Controlling Class Representative, the Rating Agencies and the Master Servicer a
new Asset Status Report as soon as practicable, but in no event later than 30
days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Controlling Class Representative and (ii) in
any case, shall determine whether such affirmative disapproval is not in the
best interest of all the Certificateholders pursuant to the Servicing Standard.
Upon making such determination in clause (ii) of the immediately
preceding paragraph, the Special Servicer shall notify the Trustee of such
rejection and deliver to the Trustee a proposed notice to Certificateholders
which shall include a copy of the Asset Status Report, and the Trustee shall
send such notice to all Certificateholders. If the majority of such
Certificateholders, as determined by Voting Rights, fail, within 5 days of the
Trustee's sending such notice, to reject such Asset Status Report, the Special
Servicer shall implement the same. If the Asset Status Report is rejected by a
majority of the Certificateholders, (other than for a reason which violates the
Servicing Standard, which shall control), the Special Servicer shall revise such
Asset Status Report as described above in this Section 3.21(d) and provide a
copy of such revised report to the Master Servicer. The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standard.
No direction of the Controlling Class Representative or the majority
of the Certificateholders shall (a) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standard and to maintain the REMIC status of
each REMIC, (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions or (c) expose the
Master Servicer, the Special Servicer, the Depositor, any Mortgage Loan Seller,
the Trust Fund or the Trustee or the officers and the directors of each party to
claim, suit or liability or (d) expand the scope of the Master Servicer's,
Trustee's or Special Servicer's responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
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(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and includes events of default with
respect to the Sub-Servicer substantially similar to the Events of Default set
forth in Section 7.01(a) hereof (other than Section 7.01(a)(x), (xi) and (xii))
to the extent applicable (modified to apply to the Sub-Servicer instead of the
Master Servicer); (ii) provides that if the Master Servicer or the Special
Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including, without limitation, by reason of an Event of
Default), the Trustee or its designee may thereupon assume all of the rights
and, except to the extent such obligations arose prior to the date of
assumption, obligations of the Master Servicer or the Special Servicer, as the
case may be, under such agreement or (except with respect only to the
Sub-Servicing Agreements in effect as of the date of this Agreement) may
terminate such subservicing agreement without cause and without payment of any
penalty or termination fee (other than the right of reimbursement and
indemnification); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Trust Fund, any successor Master Servicer or Special Servicer, as the case
may be, or any Certificateholder shall have any duties under such agreement or
any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty, (v) with respect to
any Sub-Servicing Agreement entered into by the Special Servicer, does not
permit the Sub-Servicer to enter into or consent to any modification, waiver or
amendment or otherwise take any action on behalf of the Special Servicer
contemplated by Section 3.20 hereof without the consent of such Special Servicer
or conduct any foreclosure action contemplated by Section 3.09 hereof or sale of
a Mortgage Loan or REO Property contemplated by Section 3.18 hereof, and (vi)
does not permit the Sub-Servicer any direct rights of indemnification that may
be satisfied out of assets of the Trust Fund. In addition, each Sub-Servicing
Agreement entered into by the Master Servicer shall provide that such agreement
shall be subject to Section 3.21 hereof with respect to any Mortgage Loan that
becomes a Specially Serviced Mortgage Loan. The Master Servicer and the Special
Servicer each shall deliver to the Trustee and to each other copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer hereunder to make P&I Advances or Servicing Advances shall be deemed to
have been advanced by the Master Servicer or the Special Servicer, as the case
may be, out of its own funds and, accordingly, such P&I Advances or Servicing
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the Master Servicer or the Special
Servicer, as the case may be. For so long as they are outstanding, Advances
shall accrue interest in accordance with Sections 3.03(d) and 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other, the Trustee and the Depositor in writing promptly of the appointment by
it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law, and shall be an
approved conventional seller/servicer of mortgage loans for FHLMC or FNMA or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit
of the Trustee and the Certificateholders, shall (at no expense to the Trustee,
the Certificateholders or the Trust Fund) monitor the performance and enforce
the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer or the Special Servicer, as applicable, in its good
faith business judgment, would require were it the owner of the Mortgage Loans.
Subject to the terms of the related Sub-Servicing Agreement, the Master Servicer
and the Special Servicer may each have the right to remove a Sub-Servicer at any
time it considers such removal to be in the best interests of
Certificateholders.
(d) In the event of the resignation, removal or other termination
of First Union National Bank or any successor Master Servicer hereunder for any
reason, the Trustee or other Person succeeding such resigning, removed or
terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the date of this Agreement: (i) to
assume the rights and obligations of the Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer on such terms as the Trustee or other successor Master Servicer and
such Sub-Servicer shall mutually agree (it being understood that such
Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an Event of Default (as defined in such Sub-Servicing Agreement)
has occurred and is continuing or either of the events set forth in clauses (i)
or (ii) of the following paragraph has occurred and is continuing, in each case
without paying any sub-servicer termination fee.
Each Sub-Servicing Agreement will provide, among other things, that
the Master Servicer and its successors may at its sole option, terminate any
rights the Sub-Servicer may have thereunder with respect to any or all Mortgage
Loans if Fitch (i) reduces the rating assigned to one or more Classes of the
respective Certificates as a result of the sub-servicing of the Mortgage Loans
by the Sub-Servicer, or (ii) advises the Master Servicer or the Trustee in
writing that it will cause a qualification, downgrade or withdrawal of such
rating due to the continued servicing by the Sub-Servicer.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of their respective
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if each
alone were servicing and administering the Mortgage Loans or REO Properties for
which it is responsible.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless Fitch has confirmed in writing that the execution of such
agreement will not result in a qualification, downgrade, or withdrawal of the
then-current ratings on the outstanding Certificates or such Sub-Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any Mortgage
Loans previously sub-serviced pursuant to this section) that represents less
than 25% of the outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder.
SECTION 3.23 Representations and Warranties of Master
Servicer and Special Servicer.
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(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States of America, and the Master
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
articles of association or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable receivership, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer, calculated on a consolidated basis.
(vii) Each officer, director, employee, consultant or advisor of the
Master Servicer with responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the case of the
initial Master Servicer, the consolidated net worth thereof and of its
direct or indirect parent), determined in accordance with generally
accepted accounting principles, is not less than $15,000,000.
(ix) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated by
this Agreement has been obtained and is effective.
(x) The Master Servicer possesses all insurance required pursuant to
Section 3.07(c) of this Agreement.
(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) The Special Servicer is a national banking association duly
organized under the laws of the United States of America, validly existing
and the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
certificate of incorporation or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material agreement or other material
instrument by which it is bound.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Special Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer, director and employee of the Special Servicer
and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(ix) The Special Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Section 3.23(a) (with respect to the Master
Servicer) and Section 3.23(b) (with respect to the Special Servicer),
respectively, shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties.
SECTION 3.24 Sub-Servicing Agreement Representation and
Warranty.
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(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Sections 3.22(a) and the second
paragraph of 3.22(d) in all material respects.
SECTION 3.25 Designation of Controlling Class Representative.
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(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee with written confirmation of its acceptance of such
appointment, an address and telecopy number for the delivery of notices and
other correspondence and a list of officers or employees of such Person with
whom the parties to this Agreement may deal (including their names, titles, work
addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall deliver to the requesting party the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Depository, and the
Master Servicer and the Special Servicer shall be entitled to rely on such
information provided by the Trustee with respect to any obligation or right
hereunder that the Master Servicer and the Special Servicer may have to deliver
information or otherwise communicate with the Controlling Class Representative
or any of the Holders (or, if applicable, Certificate Owners) of the Controlling
Class. In addition to the foregoing, within two (2) Business Days of the
selection, resignation or removal of a Controlling Class Representative, the
Trustee shall notify the other parties to this Agreement of such event. The
expenses incurred by the Trustee in connection with obtaining information from
the Depository or Depository Participants with respect to any Book-Entry
Certificate shall be expenses of the Trust Fund payable out of the Certificate
Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee and to each Holder (or, in the case
of Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Mortgagor with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer or
the Trust Fund are also named parties to the same action and, in the sole
judgment of the Special Servicer, (i) the Controlling Class Representative had
acted in good faith, without negligence or willful misfeasance with regard to
the particular matter, and (ii) there is no potential for the Special Servicer
or the Trust Fund to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Controlling Class Representative. This provision shall survive the
termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
SECTION 3.26 Swap Documents.
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(a) On or before the Closing Date, the Trustee, not in its
individual capacity but solely in its capacity as Trustee, shall enter into the
Swap Contract, including, without limiting the generality of the foregoing, the
Schedule to the related ISDA Master Agreement, Credit Support Annex and 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(c) 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
Yield Maintenance Charges payable on the Class A-2F Regular Interest. By 5:00
p.m. (New York time) on each P&I Advance 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) for such
Distribution Date.
(c) Promptly upon receipt of any payment or other receipt in
respect of the Class A-2F Regular Interest or 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 to the
Swap Counterparty's obligations under the Swap Documents to post collateral or,
with the reasonable cooperation of the Depositor, find a replacement swap
counterparty that would not cause a Rating Agency Trigger Event.
(e) 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 P&I Advance 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
swap payment due to the Swap Counterparty pursuant to the Swap Documents (the
"Net Swap Payment").
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERs
SECTION 4.01 Distributions.
-------------
(a) On each Distribution Date the Paying Agent shall be deemed to
distribute from the Distribution Account to the Trustee, as holder of the REMIC
I Regular Interests, and to the holders of the Class R-I Certificates, as
applicable, for the following purposes and in the following order of priority,
in each case to the extent of the remaining portion of the Available
Distribution Amount (with a credit for an amount equal to any Net Swap Payment
that was distributed by the Trustee to the Swap Counterparty on the immediately
preceding P&I Advance Date pursuant to Sections 3.26(b) and 4.01(c)):
(i) first, pro rata (A) to REMIC I Regular Interests ▇▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇▇, ▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇, ▇▇-▇-▇, ▇▇-▇▇-▇▇, ▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and
LA-2F-2, the Uncertificated Distributable Interest for such REMIC I Regular
Interests for such Distribution Date and to the extent not previously paid,
for all prior Distribution Dates, and (B) to REMIC I Regular Interests
▇▇-▇▇, ▇▇-▇▇▇, ▇▇-▇, ▇▇-▇▇, ▇▇-▇▇▇, ▇▇-▇, ▇▇-▇▇, ▇▇-▇▇▇, ▇▇-▇, ▇▇-▇, ▇▇-▇,
LF-1, LF-2, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇,
▇▇-▇, LM-2, LN-1, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇ and LQ-2, the portion
of the Uncertificated Distributable Interest for such REMIC II Regular
Interests for such Distribution Date allocable to their Corresponding
Component;
(ii) second, to REMIC I Regular Interests LA-1-1 and LA-1-2, in
reduction of their REMIC I Principal Balances, pro rata, in an amount up to
their REMIC I Principal Percentage of the Principal Distribution Amount
distributable to the Class A-1 Certificates pursuant to Section 4.01(b)
until their REMIC I Principal Balances have been reduced to zero;
(iii) third, pro rata (A) pro rata (I) to REMIC I Regular Interest
LA-2-1A until its REMIC I Principal Balance has been reduced to zero, then,
pro rata, to REMIC I Regular Interest LA-2-1BI and LA-2-1BII, and (II) to
REMIC I Regular Interest LA-2-2, and (B) pro rata (I) to REMIC I Regular
Interest LA-2F-1A until its REMIC I Principal Balance has been reduced to
zero, then, pro rata, to REMIC I Regular Interest LA-2F-1BI and LA-2F-1BII,
and (II) to REMIC I Regular Interest LA-2-2, in reduction of their REMIC
Principal Balances in an amount up to their REMIC I Principal Percentages
of the remaining Principal Distribution Amount distributable to the Class
A-2 Certificates and the Class A-2F Regular Interest pursuant to Section
4.01(b), until their REMIC I Principal Balances have been reduced to zero;
(iv) fourth, to REMIC I Regular Interests ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇, ▇▇-▇-▇, ▇▇-▇▇-▇▇, ▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2,
pro rata in accordance with, in an amount equal to, and in reimbursement
of, all Realized Losses and Additional Trust Fund Expenses, if any,
allocated to such REMIC I Regular Interests and not previously reimbursed.
(v) fifth, to REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇ and LB-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date to the extent not distributed pursuant
to priority first above, and, to the extent not previously paid, for all
prior Distribution Dates;
(vi) sixth, when the REMIC I Principal Balances of REMIC I Regular
Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇, ▇▇-▇-▇▇▇,
▇▇-▇-▇▇▇▇ ▇▇▇ ▇▇-▇-▇ and REMIC I Regular Interest ▇▇-▇▇-▇▇, ▇▇-▇▇-▇▇▇,
▇▇-▇▇-▇▇▇▇ and LA-2F-2 have been reduced to zero, to REMIC I Regular
Interests ▇▇-▇▇, ▇▇-▇▇▇ and LB-2, in reduction of their REMIC I Principal
Balances, pro rata, in an amount up to their REMIC I Principal Percentages
of the Principal Distribution Amount remaining after the distribution
referred to under priority third above and distributable to the Class B
Certificates pursuant to Section 4.01(b), until their REMIC I Principal
Balances have been reduced to zero;
(vii) seventh, to REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇ and
LB-2II, pro rata in accordance with, in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, allocated to such REMIC I Regular Interests and not previously
reimbursed;
(viii) eighth, REMIC I Regular Interests LC-1I, LC-1II and LC-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and, to the extent not previously paid, for all
prior Distribution Dates;
(ix) ninth, when the REMIC I Principal Balances of REMIC I Regular
Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇, ▇▇-▇-▇▇▇,
▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇, ▇▇-▇▇-▇▇▇,
▇▇-▇▇-▇▇▇▇ and LA-2F-2 and REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇ and LB-2
have been reduced to zero, to REMIC I Regular Interests LC-1I, LC-1II and
LC-2 in reduction of their REMIC I Principal Balances, pro rata, in an
amount up to their REMIC I Principal Percentages of the Principal
Distribution Amount remaining after the distribution referred to under
priority sixth above and distributable to the Class C Certificates pursuant
to Section 4.01(b), until their REMIC I Principal Balances have been
reduced to zero;
(x) tenth, to REMIC I Regular Interests LC-1I, LC-1II, and LC-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xi) eleventh, REMIC I Regular Interests LD-1I, LD-1II and LD-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and to the extent not previously paid, for all
prior Distribution Dates;
(xii) twelfth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2,s REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2 have been
reduced to zero, to REMIC I Regular Interests LD-1I, LD-1II and LD-2, in
reduction of their REMIC I Principal Balances, pro rata, in an amount up to
their REMIC Principal Percentages of the Principal Distribution Amount
remaining after the distribution referred to under priority ninth above,
and distributable to the Class D Certificates pursuant to Section 4.01(b),
until their REMIC I Principal Balances have been reduced to zero;
(xiii) thirteenth, to REMIC I Regular Interests LD-1I, LD-1II and
LD-2, pro rata in accordance with, in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, allocated to such REMIC I Regular Interests and not previously
reimbursed;
(xiv) fourteenth, REMIC I Regular Interests LE-1 and LE-2, pro rata,
the remainder of the Uncertificated Distributable Interest for such Classes
for such Distribution Date, to the extent not distributed pursuant to
priority first above, and to the extent not previously paid, for all prior
Distribution Dates;
(xv) fifteenth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, and REMIC I
Regular Interests LD-1I, LD-1II and LD-2 have been reduced to zero, to
REMIC I Regular Interests LE-1 and LE-2, in reduction of their REMIC I
Principal Balances, pro rata, in an amount up to their REMIC I Principal
Percentages of the Principal Distribution Amount remaining after the
distribution referred to under priority twelfth above and distributable to
the Class E Certificates pursuant to Section 4.01(b), until their REMIC I
Principal Balances have been reduced to zero;
(xvi) sixteenth, to REMIC I Regular Interests LE-1 and LE-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xvii) seventeenth, REMIC I Regular Interests LF-1 and LF-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above and, to the extent not previously paid, for all
prior Distribution Dates;
(xviii) eighteenth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1 and LD-2, REMIC I Regular Interests LE-1 and LE-2 have been
reduced to zero, to REMIC I Regular Interests LF-1 and LF-2, in reduction
of their REMIC I Principal Balances, pro rata, in an amount up to their
REMIC I Principal Percentages of the Principal Distribution Amount
remaining after the distribution referred to under priority fifteenth
above, until their REMIC I Principal Balances have been reduced to zero,
and distributable to the Class F Certificates pursuant to Section 4.01(b);
(xix) nineteenth, to REMIC I Regular Interests LF-1 and LF-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xx) twentieth, REMIC I Regular Interests LG-1 and LG-2, pro rata,
the remainder of the Uncertificated Distributable Interest for such Classes
for such Distribution Date, to the extent not distributed pursuant to
priority first above, and to the extent not previously paid, for all prior
Distribution Dates;
(xxi) twenty-first, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2 have been reduced to zero, to REMIC
I Regular Interests LG-1 and LG-2, in reduction of their REMIC I Principal
Balances, pro rata, in an amount up to their REMIC I Principal Percentages
of the Principal Distribution Amount remaining after the distribution
referred to under priority eighteenth above and distributed to the Class G
Certificates pursuant to Section 4.01(b), until their REMIC I Principal
Balances have been reduced to zero;
(xxii) twenty-second, to REMIC I Regular LG-1 and LG-2, pro rata in
accordance with, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, allocated to
such REMIC I Regular Interests and not previously reimbursed;
(xxiii) twenty-third, REMIC I Regular Interests LH-1 and LH-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and to the extent not previously paid, for all
prior Distribution Dates;
(xxiv) twenty-fourth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and
LG-2 have been reduced to zero, to REMIC I Regular Interests LH-1 and LH-2,
in reduction of their REMIC I Principal Balances, pro rata, in an amount up
to their REMIC I Principal Percentages of the Principal Distribution Amount
remaining after the distribution referred to under priority twenty-first
above, until their REMIC I Principal Balances have been reduced to zero,
and distributable to the Class H Certificates pursuant to Section 4.01(b),
(xxv) twenty-fifth, to REMIC I Regular Interests LH-1 and LH-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xxvi) twenty-sixth, REMIC I Regular Interests LJ-1 and LJ-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and, to the extent not previously paid, for all
prior Distribution Dates;
(xxvii) twenty-seventh, when the REMIC I Principal Balances of REMIC
I Regular Interests LA-1-1, and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2s, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I and LD-2, REMIC I Regular Interests LE-1 and LE-2, REMIC I
Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and LG-2,
and REMIC I Regular Interests LH-1 and LH-2 have been reduced to zero, to
REMIC I Regular Interests LJ-1 and LJ-2, in reduction of their REMIC I
Principal Balances, pro rata, in an amount up to their REMIC I Principal
Percentages of the Principal Distribution Amount remaining after the
distribution referred to under priority twenty-fourth above, and
distributable to the Class J Certificates pursuant to Section 4.01(b) until
their REMIC I Principal Balances have been reduced to zero;
(xxviii) twenty-eighth, to REMIC I Regular Interests LJ-1 and LJ-2,
pro rata in accordance with, in an amount equal to, and in reimbursement
of, all Realized Losses and Additional Trust Fund Expenses, if any,
allocated to such REMIC I Regular Interests and not previously reimbursed;
(xxix) twenty-ninth, REMIC I Regular Interests LK-1 and LK-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and, to the extent not previously paid, for all
prior Distribution Dates;
(xxx) thirtieth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and
LG-2, REMIC I Regular Interests LH-1 and LH-2, and REMIC I Regular
Interests LJ-1 and LJ-2 have been reduced to zero, to REMIC I Regular
Interests LK-1 and LK-2, in reduction of their REMIC I Principal Balances,
pro rata, in an amount up to their REMIC I Principal Percentages of the
Principal Distribution Amount remaining after the distribution referred to
under priority twenty-seventh above, and distributable to the Class K
Certificates pursuant to section 4.01(b) until their REMIC I Principal
Balances have been reduced to zero;
(xxxi) thirty-first, to REMIC I Regular Interests LK-1 and LK-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xxxii) thirty-second, REMIC I Regular Interests LL-1 and LL-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxiii) thirty-third, when the REMIC I Principal Balances of REMIC
I Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II, and LC-2, REMIC I
Regular Interests LD-1I, LD-1II, and LD-2, REMIC I Regular Interests LE-1
and LE-2, REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular
Interests LG-1 and LG-2, REMIC I Regular Interests LH-1 and LH-2, REMIC I
Regular Interests LJ-1 and LJ-2, and REMIC I Regular Interests LK-1 and
LK-2 have been reduced to zero, to REMIC I Regular Interests LL-1 and LL-2,
in reduction of their REMIC I Principal Balances, pro rata, in an amount up
to their REMIC I Principal Percentages of the Principal Distribution Amount
remaining after the distribution referred to under priority thirtieth above
and distributable to the Class L Certificates pursuant to Section 4.01(b),
until their REMIC I Principal Balances have been reduced to zero;
(xxxiv) thirty-fourth, to REMIC I Regular Interests LL-1 and LL-2,
pro rata in accordance with, in an amount equal to, and in reimbursement
of, all Realized Losses and Additional Trust Fund Expenses, if any,
allocated to such REMIC I Regular Interests and not previously reimbursed;
(xxxv) thirty-fifth, REMIC I Regular Interests LM-1 and LM-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and to the extent not previously paid, for all
prior Distribution Dates;
(xxxvi) thirty-sixth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and
LG-2, REMIC I Regular Interests LH-1 and LH-2, REMIC I Regular Interests
LJ-1 and LJ-2, REMIC I Regular Interests LK-1 and LK-2, and REMIC I Regular
Interests LL-1 and LL-2 have been reduced to zero, to REMIC I Regular
Interests LM-1 and LM-2, in reduction of their REMIC I Principal Balances,
pro rata, in an amount up to their REMIC Principal Percentages of the
Principal Distribution Amount remaining after the distribution referred to
under priority thirty-third above, and distributable to the Class M
Certificates pursuant to Section 4.01(b), until their REMIC I Principal
Balances have been reduced to zero;
(xxxvii) thirty-seventh, to REMIC I Regular Interests LM-1 and LM-2,
pro rata in accordance with, in an amount equal to, and in reimbursement
of, all Realized Losses and Additional Trust Fund Expenses, if any,
allocated to such REMIC I Regular Interests and not previously reimbursed;
(xxxviii)thirty-eighth, REMIC I Regular Interests LN-1 and LN-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and to the extent not previously paid, for all
prior Distribution Dates;
(xxxix) thirty-ninth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and
LG-2, REMIC I Regular Interests LH-1 and LH-2, REMIC I Regular Interests
LJ-1 and LJ-2, REMIC I Regular Interests LK-1 and LK-2, REMIC I Regular
Interests LL-1 and LL-2, and REMIC I Regular Interests LM-1 and LM-2 have
been reduced to zero, to REMIC I Regular Interests LN-1 and LN-2, in
reduction of their REMIC I Principal Balances, pro rata, in an amount up to
their REMIC Principal Percentages of the Principal Distribution Amount
remaining after the distribution referred to under priority thirty-sixth
above, and distributable to the Class N Certificates pursuant to Section
4.01(b), until their REMIC I Principal Balances have been reduced to zero;
(xl) fortieth, to REMIC I Regular Interests LN-1 and LN-2, pro rata
in accordance with, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, allocated to
such REMIC I Regular Interests and not previously reimbursed;
(xli) forty-first, REMIC I Regular Interest LO-1 and LO-2, pro rata,
the remainder of the Uncertificated Distributable Interest for such Classes
for such Distribution Date, to the extent not distributed pursuant to
priority first above, and, to the extent not previously paid, for all prior
Distribution Dates;
(xlii) forty-second, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II, and LC-2, REMIC I
Regular Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1
and LE-2, REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular
Interests LG-1 and LG-2, REMIC I Regular Interests LH-1 and LH-2, REMIC I
Regular Interests LJ-1 and LJ-2, REMIC I Regular Interests LK-1 and LK-2,
REMIC I Regular Interests LL-1 and LL-2, REMIC I Regular Interests LM-1 and
LM-2, and REMIC I Regular Interests LN-1 and LN-2 have been reduced to
zero, to REMIC I Regular Interests LO-1 and LO-2, in reduction of their
REMIC I Principal Balances, pro rata, in an amount up to their REMIC
Principal Percentages of the Principal Distribution Amount remaining after
the distribution referred to under priority thirty-ninth above, and
distributable to the Class O Certificates pursuant to Section 4.01(b),
until their REMIC I Principal Balances have been reduced to zero;
(xliii) forty-third, to REMIC I Regular Interests LO-1 and LO-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xliv) forty-fourth, REMIC I Regular Interests LP-1 and LP-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and to the extent not previously distributed, for
all prior Distribution Dates;
(xlv) forty-fifth, when the REMIC I Principal Balances of REMIC I
Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and
LG-2, REMIC I Regular Interests LH-1 and LH-2, REMIC I Regular Interests
LJ-1 and LJ-2, REMIC I Regular Interests LK-1 and LK-2, REMIC I Regular
Interests LL-1 and LL-2, REMIC I Regular Interests LM-1 and LM-2, REMIC I
Regular Interests LN-1 and LN-2, and REMIC I Regular Interests LO-1 and
LO-2 have been reduced to zero, to REMIC I Regular Interests LP-1 and LP-2,
in reduction of their REMIC I Principal Balances, pro rata, in an amount up
to their REMIC Principal Percentages of the Principal Distribution Amount
remaining after the distribution referred to under priority forty-second
above and distributable to the Class P Certificates pursuant to Section
4.01(b), until their REMIC I Principal Balances have been reduced to zero;
(xlvi) forty-sixth, to REMIC I Regular Interests LP-1 and LP-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(xlvii) forty-seventh, REMIC I Regular Interests LQ-1 and LQ-2, pro
rata, the remainder of the Uncertificated Distributable Interest for such
Classes for such Distribution Date, to the extent not distributed pursuant
to priority first above, and, to the extent not previously distributed, for
all prior Distribution Dates;
(xlviii) forty-eighth, when the REMIC I Principal Balances of REMIC
I Regular Interests LA-1-1 and LA-1-2, REMIC I Regular Interests ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇ and LA-2-2, REMIC I Regular Interest ▇▇-▇▇-▇▇,
▇▇-▇▇-▇▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2, REMIC I Regular Interests ▇▇-▇▇, ▇▇-▇▇▇
and LB-2, REMIC I Regular Interests LC-1I, LC-1II and LC-2, REMIC I Regular
Interests LD-1I, LD-1II and LD-2, REMIC I Regular Interests LE-1 and LE-2,
REMIC I Regular Interests LF-1 and LF-2, REMIC I Regular Interests LG-1 and
LG-2, REMIC I Regular Interests LH-1 and LH-2, REMIC I Regular Interests
LJ-1 and LJ-2, REMIC I Regular Interests LK-1 and LK-2, REMIC I Regular
Interests LL-1 and LL-2, REMIC I Regular Interests LM-1 and LM-2, REMIC I
Regular Interests LN-1 and LN-2, REMIC I Regular Interests LO-1 and LO-2
and REMIC I Regular Interests LP-1 and LP-2 have been reduced to zero, to
REMIC I Regular Interests LQ-1 and LQ-2, in reduction of their REMIC I
Principal Balances, pro rata, in an amount up to their REMIC Principal
Percentages of the Principal Distribution Amount remaining after the
distribution referred to under priority forty-fifth above and distributable
to the Class Q Certificates pursuant to Section 4.01(b), until their REMIC
I Principal Balances have been reduced to zero; and
(xlix) forty-ninth, to REMIC I Regular Interests LQ-1 and LQ-2, pro
rata in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, allocated
to such REMIC I Regular Interests and not previously reimbursed;
(l) fiftieth, to the Holders of the Class R-I Certificates, any
remaining portion of the Available Distribution Amount,
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates has been reduced to zero,
the payments of principal to be made as contemplated by clauses (ii) and (iii)
above with respect to the REMIC I Regular Interests ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇▇,
▇▇-▇-▇▇▇, ▇▇-▇-▇▇▇▇, ▇▇-▇-▇, ▇▇-▇▇-▇▇, ▇▇-▇▇-▇▇▇▇ and LA-2F-2 will be made to
the Trustee as holder of the respective Classes of REMIC I Regular Interests up
to an amount equal to, and pro rata as among such Classes in accordance with,
the respective then outstanding REMIC I Principal Balances of such Classes and
without regard to the Principal Distribution Amount for such Distribution Date.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of REMIC I Regular Interests shall not
constitute distributions of principal and shall not result in reduction of the
related REMIC I Principal Balance.
(b) On each Distribution Date the Paying Agent shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account (net of an amount equal to any Net Swap Payment that was distributed on
the immediately preceding P&I Advance Date pursuant to Sections 4.01(c)), after
payment of amounts payable from the Distribution Account in accordance with
Section 3.05(b)(ii) through (vii), for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount:
(i) to distributions of interest to the Holders of the Senior
Interests in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Interests for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates; provided that any amounts paid to
the Swap Counterparty pursuant to Sections 3.04(f) and 3.26(b) hereof shall
be deemed to have been paid to the Class A-2F Regular Interest pursuant to
this Section 4.01 (b)(i).
(ii) to distributions of principal to the Holders of the Class A-1
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-1 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal, pro
rata, to the Holders of the Class A-2 Certificates and the Class A-2F
Regular Interest, in an amount (not to exceed the Class Principal Balance
of the Class A-2 Certificates and the Class A-2F Regular Interest
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of the
Class A-1 Certificates pursuant to clause (ii) above);
(iv) to distributions to the Holders of the Class A-1 Certificates,
the Class A-2 Certificates and the Class A-2F Regular Interests, pro rata
in accordance with, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to each such Class of Certificates and not previously reimbursed;
(v) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(vi) after the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates and the Class A-2F Regular
Interests have been reduced to zero, to distributions of principal to the
Holders of the Class B Certificates, in an amount (not to exceed the Class
Principal Balance of the Class B Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b)).
(vii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class B
Certificates and not previously reimbursed;
(viii) to distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(ix) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class C Certificates, in an amount (not to exceed the Class Principal
Balance of the Class C Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(x) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class C
Certificates and not previously reimbursed;
(xi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xii) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class D Certificates, in an amount (not to exceed the Class Principal
Balance of the Class D Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xiii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class D
Certificates and not previously reimbursed;
(xiv) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xv) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class E Certificates, in an amount (not to exceed the Class Principal
Balance of the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xvi) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class E
Certificates and not previously reimbursed;
(xvii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xviii) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal to the
Holders of the Class F Certificates, in an amount (not to exceed the Class
Principal Balance of the Class F Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xix) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xx) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxi) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class G Certificates, in an amount (not to exceed the Class Principal
Balance of the Class G Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xxii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class G
Certificates and not previously reimbursed;
(xxiii) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiv) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class H Certificates, in an amount (not to exceed the Class Principal
Balance of the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xxv) to distributions to the Holders of the Class H Certificates in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxvi) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class J Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxvii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal to the
Holders of the Class J Certificates, in an amount (not to exceed the Class
Principal Balance of the Class J Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xxviii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class J Certificates and not previously reimbursed;
(xxix) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class K Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxx) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, in an amount (not to exceed the Class Principal
Balance of the Class K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xxxi) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class K
Certificates and not previously reimbursed;
(xxxii) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class L Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxiii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to distributions of principal to the
Holders of the Class L Certificates, in an amount (not to exceed the Class
Principal Balance of the Class L Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xxxiv) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class L
Certificates and not previously reimbursed;
(xxxv) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class M Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxvi) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal to the
Holders of the Class M Certificates, in an amount (not to exceed the Class
Principal Balance of the Class M Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xxxvii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class M Certificates and not previously reimbursed;
(xxxviii) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class N Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxix) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to distributions of principal to the
Holders of the Class N Certificates, in an amount (not to exceed the Class
Principal Balance of the Class N Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xl) to distributions to the Holders of the Class N Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class N
Certificates and not previously reimbursed;
(xli) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class O Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xlii) after the Class Principal Balance of the Class N Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xliii) 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, previously allocated to the Class O
Certificates and not previously reimbursed;
(xliv) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class P Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xlv) after the Class Principal Balance of the Class O Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xlvi) 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, previously allocated to the Class P
Certificates and not previously reimbursed;
(xlvii) to distributions of interest to the Holders of the Class Q
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class Q Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xlviii) after the Class Principal Balance of the Class P
Certificates has been reduced to zero, to distributions of principal to the
Holders of the Class Q Certificates, in an amount (not to exceed the Class
Principal Balance of the Class Q Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(b));
(xlix) to distributions to the Holders of the Class Q Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class Q
Certificates and not previously reimbursed; and
(l) to make distributions to the Holders of the Class R-II
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(a), over (B)
the aggregate distributions made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to clauses (i) through (xlix)
above;
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates has been reduced to zero,
the payments of principal to be made as contemplated by clauses (ii) and (iii)
above with respect to the Class A Certificates will be made to the Holders of
the respective Classes of such Class A Certificates up to an amount equal to,
and pro rata as among such Classes in accordance with, the respective then
outstanding Class Principal Balances of such Classes of Certificates and without
regard to the Principal Distribution Amount for such Distribution Date.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
(c) On each P&I Advance Date, the Trustee shall distribute to the
Swap Counterparty the Net Swap Payment, pursuant to Section 3.26(b). On each
Distribution Date, the Trustee shall distribute the Class A-2F Available Funds
for such Distribution Date 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 Yield
Maintenance Charge 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 related Class A-2F Regular Interest.
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.
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.
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."
(d) On each Distribution Date, the Paying Agent shall withdraw
from the Distribution Account any amounts that represent Prepayment Premiums
and/or Yield Maintenance Charges actually collected on the Mortgage Loans and
any REO Loans during the related Collection Period and shall be deemed to
distribute such Prepayment Premiums and/or Yield Maintenance Charges from REMIC
I to REMIC II in respect of REMIC I Regular Interest LA-1-1 (whether or not such
Class has received all distributions of interest and principal to which it is
entitled), and then shall distribute each such Prepayment Premium and/or Yield
Maintenance Charge, as additional yield, as follows:
(i) With respect to Prepayment Premiums collected on the Mortgage
Loans:
(A) First, to the Holders of the respective Classes of REMIC
II Regular Interests (other than the Class A-2F Regular Interest or
any Excluded Class thereof) entitled to distributions of principal
pursuant to Section 4.01(b) on the related Distribution Date, up to
an amount of Prepayment Premiums equal to the product of (x) the
amount of such Prepayment Premiums, multiplied by (y) a fraction,
the numerator of which is equal to the amount of principal
distributable to such Class of Sequential Pay Certificates on the
related Distribution Date, and the denominator of which is the
Principal Distribution Amount for the related Distribution Date,
multiplied by (z) 25%; and
(B) Second, to the Holders of the Class IO Certificates, to
the extent of any remaining portion of such Prepayment Premiums
(distributions pursuant to this sub-clause (i)(B) to be deemed
allocable among the respective Components of the Class IO-I and
Class IO-III Certificates on a pro rata basis in accordance with the
respective amounts of Accrued Component Interest in respect of such
Components for the subject Distribution Date).
(ii) With respect to Yield Maintenance Charges collected on the
Mortgage Loans:
(A) First, to the Class A-2F Regular Interest and the Holders
of the respective Classes of REMIC II Regular Interests (other than
any Excluded Class thereof) entitled to distributions of principal
pursuant to Section 4.01(b) on such Distribution Date, up to an
amount equal to, and pro rata based on, the Additional Yield Amounts
for each such Class of Certificates for such Distribution Date; and
(B) Second, to the Holders of the Class IO-I and Class IO-III
Certificates, to the extent of any remaining portion of such Yield
Maintenance Charge (distributions pursuant to this sub-clause
(ii)(B) to be allocable thirty percent (30%) to the Class IO-I and
seventy percent (70%) to the Class IO-III Certificates.
For so long as the Swap Documents are in effect, the Yield
Maintenance Charges 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 Yield Maintenance Premium paid
to the Class A-2F Regular Interest will be paid to the Class A-2F Certificates.
On each Distribution Date, the Paying Agent shall withdraw from the
Additional Interest Account any amounts that represent Additional Interest
actually collected during the related Collection Period on the ARD Loans and any
related REO Loans and shall distribute such amounts among the Holders of the
Class Q Certificates pro rata in accordance with their respective Percentage
Interests of such Class.
(e) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Sequential Pay Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate, but taking into account possible future
distributions of Additional Interest) will be made in a like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto, which reimbursement is to occur after
the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the Paying
Agent was subsequently notified in writing. If such check is returned to the
Paying Agent, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Paying Agent has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Paying Agent shall, subject to applicable law,
distribute the unclaimed funds to the Holders of the Class R-II Certificates.
(f) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under a Letter of Representations
among the Depositor, the Trustee and the Initial Depository dated as of the
Closing Date.
(g) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the
Paying Agent receives written notification of or expects that the final
distribution with respect to any Class of Certificates (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Class of Certificates) will be
made on the next Distribution Date, the Paying Agent shall, no later than five
days after the related Determination Date, mail to each Holder of record on such
date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
office of the Certificate Registrar or at such other location therein
specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Paying Agent shall, subject to applicable law,
distribute to the Holders of the Class R-II Certificates all unclaimed funds and
other assets which remain subject thereto.
(i) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders.
SECTION 4.02 Statements to Certificateholders; CMSA Loan
Periodic Update File.
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(a) On each Distribution Date, the Trustee shall forward by mail
(or by electronic transmission acceptable to the recipient) to each
Certificateholder, each initial Certificate Owner and (upon written request made
to the Trustee) each subsequent Certificate Owner (as identified to the
reasonable satisfaction of the Trustee), the Depositor, the Master Servicer, the
Special Servicer, the Underwriters, the Swap Counterparty and each Rating
Agency, a statement (a "Distribution Date Statement"), as to the distributions
made on such Distribution Date, based on information provided to it by the
Master Servicer and the Special Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of REMIC II Regular Interests in reduction of the
Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of REMIC II Regular Interests allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of REMIC II Regular Interests allocable to
Prepayment Premiums and/or Yield Maintenance Charges;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of REMIC II Regular Interests in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in respect of
such Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii), and the
aggregate amount of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances that had been outstanding at
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer or the
Trustee in respect of such ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances in accordance with
Section 4.03(d) as of the close of business on the related Determination
Date, (b) the aggregate amount of Servicing Advances as of the close of
business on the related Determination Date and (c) the aggregate amount of
all Nonrecoverable Advances as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related Determination
Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent
more than 89 days, (D) as to which foreclosure proceedings have been
commenced, and (E) to the actual knowledge of the Master Servicer or
Special Servicer in bankruptcy proceedings;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, and (C) a brief
description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the aggregate of all Liquidation
Proceeds and other amounts received in connection with such Liquidation
Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Realized Loss
in connection with such Liquidation Event;
(xiii) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Interests for such
Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Interests after giving effect to the
distributions made on such Distribution Date 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;
(xvi) the Pass-Through Rate for each Class of REMIC II Regular
Interests for such Distribution Date;
(xvii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
received during the related Collection Period, the loan number for the
related Mortgage Loan and the amount of such prepayment or other collection
of principal);
(xviii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xix) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that were allocated on such Distribution Date;
(xx) the Class Principal Balance of each Class of REMIC II Regular
Interests (other than the Class IO Certificates) and the Component Notional
Amount of each Component outstanding immediately before and immediately
after such Distribution Date, separately identifying any reduction therein
due to the allocation of Realized Losses and Additional Trust Fund Expenses
on such Distribution Date;
(xxi) the Certificate Factor for each Class of REMIC II Regular
Interests immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee during the related Collection Period in
accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer, the Trustee and the Special Servicer during the
related Collection Period in accordance with Section 3.03(d);
(xxiv) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer during the related Collection Period; and
(xxv) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination Date;
(xxvi) the original and then current credit support levels for each
Class of REMIC II Regular Interests;
(xxvii) the original and then current ratings for each Class of
REMIC II Regular Interests;
(xxviii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period; and
(xxix) the amounts, if any, actually distributed with respect to the
Class R-I Certificates or Class R-II Certificates on such Distribution
Date;
(xxx) LIBOR as calculated for the related Distribution Date;
(xxxi) the amounts received and paid in respect of the Swap
Documents;
(xxxii) 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;
(xxxiii) 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
(xxxiv) 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 that requires distribution on the Class
A-2F Certificates pursuant to the terms of this Agreement.
All amounts reported above in respect of the Class A-2F Regular
Interest and the Swap Documents shall be reported to the Holders of the Class
A-2F Certificates.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xiii), and (xxiv)
above, insofar as the underlying information is solely within the control of the
Special Servicer, the Trustee and the Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer.
The Trustee may rely on and shall not be responsible absent manifest
error for the content or accuracy of any information provided by third parties
for purposes of preparing the Distribution Date Statement and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
The Trustee shall make available or shall cause to be delivered on
each Distribution Date either electronically or by first class mail to each
Certificateholder, the Depositor, the Underwriters, each Rating Agency, the
Special Servicer and any other Person designated in writing by the Depositor (by
hard copy, on diskette or via such other electronic medium as is mutually
acceptable to the Trustee and the recipient) a copy of the following nine
reports or in the case of reports to Persons designated in writing by the
Depositor, any of the following nine reports delivered to it by the Master
Servicer pursuant to Section 3.12(c): (i) the Delinquent Loan Status Report,
(ii) the Historical Liquidation Report, (iii) the Historical Loan Modification
Report, (iv) the REO Status Report, (v) the Watch List, (vi) a Comparative
Financial Status Report, (vii) an Operating Statement Analysis, (viii) an NOI
Adjustment Worksheet and (ix) an Interim Delinquent Loan Status Report. The
Trustee shall make available or shall cause to be delivered on each Distribution
Date by first class mail (or by electronic transmission acceptable to the
recipient) to each Certificateholder, each Certificate Owner, the Underwriters,
the Depositor, each Rating Agency and each other Person that received a
Distribution Date Statement on such Distribution Date a hard copy (or a copy in
an electronic medium acceptable to the recipient) of the CMSA Loan Periodic
Update File, the CMSA Property File, the CMSA Bond File, and the CMSA Collateral
Summary File containing information regarding each Mortgaged Property most
recently received from the Master Servicer. Absent manifest error, none of the
Master Servicer or the Special Servicer shall be responsible for the accuracy or
completeness of any information supplied to it by a borrower or third party that
is included in any reports, statements, materials or information prepared or
provided by the Master Servicer or the Special Servicer, as applicable. The
Trustee shall not be responsible absent manifest error for the accuracy or
completeness of any information supplied to it for delivery pursuant to this
Section. Neither the Trustee, the Master Servicer nor the Special Servicer shall
have any obligation to verify the accuracy or completeness of any information
provided by a Mortgagor or third party.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon request, send to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to clauses (i), (ii), (iii) and (iv) of the description of
"Distribution Date Statement" above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust Fund. Such requirement shall be deemed to be satisfied to the extent
such information is provided pursuant to applicable requirements of the Code
from time to time in force.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of such
statements, reports and/or other written information to such Certificate Owner
upon the request of such Certificate Owner made in writing to the Corporate
Trust Office (accompanied by current verification of such Certificate Owner's
ownership interest). Such portion of such information as may be agreed upon by
the Depositor and the Trustee shall be furnished to any such Person via
overnight courier delivery or telecopy from the Trustee; provided that the cost
of such overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Trustee or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
(b) Not later than 2:00 p.m. New York City time on the second
Business Day preceding each Distribution Date the Master Servicer shall furnish
to the Trustee, the Depositor, the Special Servicer and the Underwriters, by
electronic transmission (or in such other form to which the Trustee or the
Depositor, as the case may be, and the Master Servicer may agree), with a hard
copy of such transmitted information to follow promptly, an accurate and
complete CMSA Loan Periodic Update File providing the required information for
the Mortgage Loans as of such Determination Date. The Depositor shall provide
the information necessary for the CMSA set up file. Not later than 2:00 p.m. New
York City time on the second Business Day preceding each Distribution Date, the
Master Servicer shall deliver to the Trustee notice of the Discount Rate
applicable to each Principal Prepayment received in the related Collection
Period.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on reports
provided to it by the Master Servicer, and the Trustee shall not be responsible
to recompute, recalculate or verify the information provided to it by the Master
Servicer. In the case of information to be furnished by the Master Servicer to
the Trustee pursuant to this Section 4.02(b), insofar as such information is
solely within the control of the Special Servicer, the Master Servicer shall
have no obligation to provide such information until it has received such
information from the Special Servicer, shall not be in default hereunder due to
a delay in providing the CMSA Loan Periodic Update File caused by the Special
Servicer's failure to timely provide any report required under this Agreement
and may, absent manifest error, conclusively rely on the reports to be provided
by the Special Servicer.
SECTION 4.03 P&I Advances.
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(a) On or before 2:00 p.m., New York City time, on each P&I
Advance Date, the Master Servicer shall (i) apply amounts in the Certificate
Account received after the end of the related Collection Period or otherwise
held for future distribution to Certificateholders in subsequent months in
discharge of its obligation to make P&I Advances or (ii) subject to Section
4.03(c) below, remit from its own funds to the Paying Agent for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date. The Master Servicer
may also make P&I Advances in the form of any combination of clauses (i) and
(ii) above aggregating the total amount of P&I Advances to be made. Any amounts
held in the Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Certificate Account on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 3:00 p.m.,
New York City time, on any P&I Advance Date, the Master Servicer shall not have
made any P&I Advance required to be made on such date pursuant to this Section
4.03(a) (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone (▇▇▇) ▇▇▇-▇▇▇▇
(or such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 4:00 p.m., New York City
time, on such P&I Advance Date. If the Trustee does not receive the full amount
of such P&I Advances by 10:00 a.m., New York City time, on the related
Distribution Date, then, subject to Section 4.03(c), (i) the Trustee shall, no
later than 11:00 a.m., New York City time, on such related Distribution Date
make the portion of such P&I Advances that was required to be, but was not, made
by the Master Servicer on such P&I Advance Date, and (ii) the provisions of
Sections 7.01 and 7.02 shall apply. 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 by the Master
Servicer or the Trustee in respect of any Distribution Date shall, subject to
Section 4.03(c) below, equal the aggregate of all Periodic Payments (other than
Balloon Payments) and any Assumed Scheduled Payments, net of related Servicing
Fees due or deemed due, as the case may be, in respect of the Mortgage Loans
(including, without limitation, Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans on their respective Due Dates
during the related Collection Period, in each case to the extent such amount was
not paid by or on behalf of the related Mortgagor or otherwise collected
(including as net income from REO Properties) as of the close of business on the
related Determination Date; provided, that, (x) if the Periodic Payment on any
Mortgage Loan has been reduced in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
or if the final maturity on any Mortgage Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, and the Periodic Payment due and owing during the
extension period is less than the related Assumed Scheduled Payment, then the
Master Servicer or the Trustee shall, as to such Mortgage Loan only, advance
only the amount of the Periodic Payment due and owing after taking into account
such reduction (net of related Servicing Fees) in the event of subsequent
delinquencies thereon; and (y) if it is determined that an Appraisal Reduction
Amount exists with respect to any Required Appraisal Loan, then, with respect to
the Distribution Date immediately following the date of such determination and
with respect to each subsequent Distribution Date for so long as such Appraisal
Reduction Amount exists with respect to such Required Appraisal Loan, the Master
Servicer or the Trustee will be required in the event of subsequent
delinquencies to advance in respect of such Mortgage Loan only an amount equal
to the sum of (A) the amount of the interest portion of the P&I Advance that
would otherwise be required without regard to this clause (ii), minus the
product of (1) such Appraisal Reduction Amount and (2) the per annum
Pass-Through Rate (i.e., for any month, one-twelfth of the Pass-Through Rate)
applicable to the Class of Certificates to which such Appraisal Reduction Amount
is allocated pursuant to Section 4.04 (d) and (B) the amount of the principal
portion of the P&I Advance that would otherwise be required without regard to
this clause (ii).
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers' Certificate delivered to the Trustee and the Depositor
on or before the related P&I Advance Date, setting forth the basis for such
determination, together with any other information, including Appraisals (the
cost of which may be paid out of the Certificate Account pursuant to Section
3.05(a)) (or, if no such Appraisal has been performed pursuant to this Section
4.03(c), a copy of an Appraisal of the related Mortgaged Property performed
within the twelve months preceding such determination), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties, engineers' reports, environmental surveys and any
similar reports that the Master Servicer may have obtained consistent with the
Servicing Standard and at the expense of the Trust Fund, that support such
determination by the Master Servicer. On the fourth Business Day before each
Distribution Date, the Special Servicer shall report to the Master Servicer the
Special Servicer's determination as to whether each P&I Advance made with
respect to any previous Distribution Date or required to be made with respect to
such Distribution Date with respect to any Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable P&I Advance. The Master Servicer shall be entitled
to conclusively rely on such determination. The Trustee shall be entitled to
rely, conclusively, on any determination by the Master Servicer that a P&I
Advance, if made, would be a Nonrecoverable Advance (and with respect to a P&I
Advance, the Trustee, as applicable, shall rely on the Master Servicer's
determination that the P&I Advance would be a Nonrecoverable Advance if the
Trustee determines that it does not have sufficient time to make such
determination); provided, however, that if the Master Servicer has failed to
make a P&I Advance for reasons other than a determination by the Master Servicer
that such P&I Advance would be Nonrecoverable Advance, the Trustee shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee, in good faith, makes a determination prior to the times specified in
Section 4.03(a) that such P&I Advance would be a Nonrecoverable Advance. The
Trustee in determining whether or not a P&I Advance previously made is, or a
proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be
subject to the standards applicable to the Master Servicer hereunder. A copy of
any Officers' Certificate prepared in accordance with this Section (together
with any appraisals affixed thereto) shall be delivered to the Controlling Class
Representative upon request (or, absent request, any such Officers' Certificates
shall be delivered to the Controlling Class Representative on no less than a
quarterly basis).
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), subject to the next sentence, the Master Servicer shall be entitled to
pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in effect
from time to time, compounded annually, accrued on the amount of such P&I
Advance (to the extent made with its own funds) from the date made to but not
including the date of reimbursement such interest to be payable (i) out of late
payment charges and Penalty Interest collected on or in respect of the related
Mortgage Loan and REO Loan during the same Collection Period in which such P&I
Advance is reimbursed (the use of such late payment charges and Penalty Interest
to be allocated between the Master Servicer and the Special Servicer on a pro
rata basis based on the amount of late payment charges and Penalty Interest that
the Master Servicer and the Special Servicer have received as additional
servicing compensation during such period), and (ii) to the extent that the late
payment charges and Penalty Interest described in the immediately preceding
clause (i) are insufficient, but only after such P&I Advance has been
reimbursed, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account; provided, however, that no
interest shall accrue on any P&I Advance made with respect to a Mortgage Loan
unless the related Periodic Payment is received after any applicable grace
period has expired. The Master Servicer shall reimburse itself or the Trustee,
as applicable, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection
was received by the Master Servicer on or prior to the related P&I Advance Date.
SECTION 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses; Allocation of Certificate Deferred
Interest; Allocation of Appraisal Reduction Amounts.
----------------------------------------------------
(a) On each Distribution Date, following all distributions to be
made on such date pursuant to Section 4.01, the Paying Agent shall allocate to
the respective Classes of Sequential Pay Certificates as follows the aggregate
of all Realized Losses and Additional Trust Fund Expenses that were incurred at
any time following the Cut-off Date through the end of the related Collection
Period, to the extent not previously allocated pursuant to this Section 4.04(a)
on any prior Distribution Date, but only to the extent that (i) the aggregate
Certificate Principal Balance of the Sequential Pay Certificates as of such
Distribution Date (after taking into account all of the distributions made on
such Distribution Date pursuant to Section 4.01), exceeds (ii) the excess of the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date: first, to the Class Q
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; second, to the Class P Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero, third, to the Class O
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero, fourth to the Class N Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fifth, to the Class M
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; sixth, to the Class L Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; seventh, to the Class K
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; eighth, to the Class J Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; ninth, to the Class H
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; tenth, to the Class G Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; eleventh, to the Class F
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; twelfth, to the Class E Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; thirteenth, to the Class D
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fourteenth, to the Class C Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; fifteenth, to the
Class B Certificates, until the remaining Class Principal Balance thereto has
been reduced to zero; and sixteenth pro rata (based on remaining Class Principal
Balances) to the Class A-1 Certificates, the Class A-2 Certificates and the
Class A-2F Regular Interest, until the Class Principal Balances thereof are
reduced to zero. Any allocation of Realized Losses and Additional Trust Fund
Expenses to a Class of REMIC II Regular Interests shall be made by reducing the
Class Principal Balance thereof by the amount so allocated. All Realized Losses
and Additional Trust Fund Expenses, if any, allocated to a Class of REMIC II
Regular Interests shall be allocated among the respective Certificates of such
Class in proportion to the Percentage Interests evidenced thereby. All Realized
Losses and Additional Trust Fund Expenses, if any, that have not been allocated
to the REMIC II Regular Interests as of the Distribution Date on which the
aggregate Certificate Principal Balance of such REMIC II Regular Interests has
been reduced to zero, shall be deemed allocated to the Residual Certificates.
(b) On each Distribution Date, following the deemed distributions
to be made in respect of the REMIC I Regular Interests pursuant to Section
4.01(a), the REMIC I Principal Balance of Corresponding REMIC I Regular
Interests (after taking account of such deemed distributions) shall be reduced
in accordance with their REMIC I Principal Percentages to equal the Class
Principal Balance of the Corresponding Class of Sequential Pay Certificates that
will be outstanding immediately following such Distribution Date. Such
reductions shall be deemed to be an allocation of Realized Losses and Additional
Trust Fund Expenses.
(c) On any Distribution Date, the amount of any Mortgage Deferred
Interest will be allocated as Certificate Deferred Interest to each outstanding
Class of Sequential Pay Certificates in reverse alphabetical order, in each case
up to the respective Accrued Certificate Interest for each such Class of
Certificates for such Distribution Date. On each such Distribution Date, the
Certificate Principal Balance of each Class of Certificates to which Certificate
Deferred Interest has been allocated will be increased by the amount of
Certificate Deferred Interest allocated to such Class. The amount of Certificate
Deferred Interest allocated to any Class of Sequential Pay Certificates will be
allocated to, and will increase the REMIC I Principal Balances of the
Corresponding REMIC I Regular Interests in accordance with their REMIC I
Principal Percentages.
(d) Any Appraisal Reduction Amounts will be allocated only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan to the Class Principal Balance of the Class Q, 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, up to the amount of
their respective Class Principal Balances. On any Distribution Date, an
Appraisal Reduction Amount that otherwise would be allocated to a Class of
Certificates will be allocated to the next most subordinate Class to the extent
that the Class Principal Balance on such Distribution Date for such Class of
Certificates (prior to taking the Appraisal Reduction Amount into account) is
less than the Appraisal Reduction Amount for the Distribution Date. The Master
Servicer shall report to the Trustee on or before each Determination Date all
Appraisal Reduction Amounts and the Trustee shall report to the Master Servicer
no later than 10:00 a.m. on the related P&I Advance Date the Pass-Through Rates
necessary to calculate the allocation required by this Section 4.04(d).
SECTION 4.05 Calculations.
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The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Paying Agent shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Paying Agent shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Paying Agent of such
amounts shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
SECTION 4.06 Use of Agents.
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The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations or
liabilities, and the Master Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers-of-attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to Section 2.03(b) and
3.01(b), as applicable, in which case the Trustee shall have no such
responsibility)
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
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(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibit A; provided that any of the Certificates may be
issued with appropriate insertions, omissions, substitutions and variations, and
may have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Agreement, as may be required to comply
with any law or with rules or regulations pursuant thereto, or with the rules of
any securities market in which the Certificates are admitted to trading, or to
conform to general usage. The Certificates will be issuable in registered form
only; provided, however, that in accordance with Section 5.03 beneficial
ownership interests in the Regular Certificates and the Class A-2F Certificates
shall initially be held and transferred through the book-entry facilities of the
Depository. The Regular Certificates and the Class A-2F Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances or initial Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $10,000 in the case of the Registered Certificates
$1,000,000 in the case of the Class IO Certificates, and $250,000 in the case of
Non-Registered Certificates (other than the Residual Certificates and the Class
IO Certificates), and in each such case in integral multiples of $1 in excess
thereof. The Class R-I Certificate and the Class R-II Certificates shall have no
minimum denomination and shall each be represented by a single definitive
certificate.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
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(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar (located as of the Closing Date at ▇▇▇▇▇
Fargo Center, Sixth and Marquette, Minneapolis,, Minnesota 55479-0113), shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee is hereby initially appointed (and
hereby agrees to act in accordance with the terms hereof) as Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Special Servicer and (if the Trustee is not the Certificate Registrar) the
Master Servicer, any other bank or trust company to act as Certificate Registrar
under such conditions as the predecessor Certificate Registrar may prescribe,
provided that the predecessor Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment. If
the Trustee resigns or is removed in accordance with the terms hereof, the
successor trustee shall immediately succeed to its duties as Certificate
Registrar. The Depositor, the Trustee (if it is no longer the Certificate
Registrar), the Master Servicer and the Special Servicer shall have the right to
inspect the Certificate Register or to obtain a copy thereof at all reasonable
times, and to rely conclusively upon a certificate of the Certificate Registrar
as to the information set forth in the Certificate Register. Upon written
request of any Certificateholder made for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Certificate Registrar shall promptly furnish such Certificateholder with a list
of the other Certificateholders of record identified in the Certificate Register
at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective Affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 hereto, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 hereto or as
Exhibit G-3 hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and upon acquisition of such a Certificate shall be
deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
In connection with transfer of the Non-Registered Certificates, the
Depositor shall furnish upon request of a Certificateholder or Certificate Owner
to such Holder or Certificate Owner and any prospective purchaser designated by
such Certificateholder or Certificate Owner the information required to be
delivered under paragraph (d)(4) of Rule 144A of the Securities Act.
Notwithstanding the foregoing, for so long as any Non-Registered
Certificate is a Book-Entry Certificate, (a) each prospective transferor of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferee of such Certificate the information set forth on Exhibit G-1
upon or prior to such transfer and (b) each prospective transferee of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferor of such Certificate the information set forth on Exhibit G-2
or Exhibit G-3 upon or prior to such transfer.
(c) No transfer of an ERISA Restricted Certificate or any interest
therein shall be made to any "employee benefit plan" subject to Title I of
ERISA, a "plan" described by Section 4975(e)(1) of the Code or any plan subject
to applicable federal, state or local law ("Similar Law") materially similar to
the foregoing provisions of ERISA or the Code, or any entity deemed to hold plan
assets of the foregoing by reason of such a plan's investment in such entity
(each, a "Plan") it is an insurance company general account which is eligible
for, and satisfies all the requirements of, exemptive relief under Sections I
and III of Department of Labor Prohibited Transaction Class Exemption 95-60
("PTE 95-60"). Each Person who acquires an ERISA Restricted Certificate in
Definitive Certificate form shall be required to certify in writing in the form
attached as Exhibit H hereto that it meets the foregoing conditions, and each
Person who acquires an ERISA Restricted Certificate in Book-Entry Certificate
form shall be deemed to have represented that the foregoing conditions are
satisfied and that it will not transfer such Certificate in violation of the
foregoing.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Paying Agent under
clause (ii)(A) below to deliver payments to a Person other than such Person and
to have irrevocably authorized the Certificate Registrar under clause (ii)(B)
below to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Residual Certificate are expressly subject to the following provisions:
(1) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Master Servicer, the Paying Agent and the
Certificate Registrar of any change or impending change in its
status as a Permitted Transferee.
(2) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of an affidavit and agreement
substantially in the form attached hereto as Exhibit I (a "Transfer
Affidavit and Agreement"), from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, and upon which
the Certificate Registrar may, in the absence of actual knowledge by
a Responsible Officer of either the Trustee or the Certificate
Registrar to the contrary, conclusively rely, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as
a nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in
a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section
5.02(d) and agrees to be bound by them.
(3) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(4) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a certificate substantially in the form attached hereto as Exhibit
I-2 stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee.
(5) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Master Servicer and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer or the Certificate
Registrar shall be under any liability to any Person for any registration
of Transfer of a Residual Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, the Certificate Registrar shall have the
right, without notice to the Holder or any prior Holder of such
Residual Certificate, to cause the transfer of such Residual
Certificate to a Permitted Transferee on such terms as the
Certificate Registrar may choose. Such purported Transferee shall
promptly endorse and deliver such Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such Permitted
Transferee may be the Certificate Registrar itself or any Affiliate
of the Certificate Registrar. Any proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Paying Agent to such purported
Transferee. The terms and conditions of any sale under this clause
(ii)(B) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the
Internal Revenue Service and to those Persons specified by the REMIC
Provisions any information available to it which is necessary to compute
any tax imposed as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is a Disqualified Organization or
agent thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate, and the Master Servicer and the
Special Servicer shall furnish to the Certificate Registrar all
information in its possession necessary for the Certificate Registrar to
discharge such obligation. The transferor of such Ownership Interest shall
be responsible for the reasonable compensation of the Certificate
Registrar, the Master Servicer and the Special Servicer for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Certificate Registrar and the
Master Servicer the following:
(1) written confirmation from each Rating Agency to the
effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then-current rating of any Class of Certificates;
and
(2) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master Servicer,
obtained at the expense of the party seeking such modification of,
addition to or elimination of such provisions (but in no event at
the expense of the Trust Fund), to the effect that doing so will not
cause either REMIC I or REMIC II to (x) cease to qualify as a REMIC
or (y) be subject to an entity-level tax caused by the Transfer of
any Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall
be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
SECTION 5.03 Book-Entry Certificates.
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(a) Each Class of Regular Certificates and the Class A-2F
Certificates shall initially be issued as one or more Certificates registered in
the name of the Depository or its nominee and, except as provided in Section
5.03(c) below, transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of the same Class and like Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05 Persons Deemed Owners.
---------------------
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and may treat the person whose name each Certificate is registered as of
the date of determination as the owner of such Certificate for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicer and
Special Servicer.
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The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of
Depositor or Master Servicer or Special Servicer.
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Subject to the following paragraph, the Depositor and the Special
Servicer shall each keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement, and the Master Servicer shall keep in full effect
its existence and rights as a national banking association under the laws of the
United States.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which may be limited to all or
substantially all of its assets related to commercial mortgage loan servicing)
to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Master Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business (which may
be limited to the commercial loan servicing business) of the Depositor, the
Master Servicer or the Special Servicer, shall be the successor of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that no successor or surviving Person shall
succeed to the rights of the Master Servicer or the Special Servicer unless (i)
as evidenced in writing by the Rating Agencies, such succession will not result
in qualification, downgrading or withdrawal of the ratings then assigned by the
Rating Agencies to any Class of Certificates and (ii) such successor or
surviving Person makes the applicable representations and warranties set forth
in Section 3.23.
SECTION 6.03 Limitation on Liability of Depositor, Master
Servicer and Special Servicer.
--------------------------------------------
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation, warranty or covenant made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, officer, employee or agent of the Depositor, the Master Servicer or
the Special Servicer may rely in good faith on any document of any kind which,
prima facie, is properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Master Servicer, the Special
Servicer and any director, member, manager, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified and
held harmless by the Trust Fund against any loss, liability or reasonable
expense incurred in connection with this Agreement or the Certificates
(including, without limitation, the distribution or posting of reports or other
information as contemplated by this Agreement), other than any loss, liability
or expense: (i) specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof (including without limitation, those
expenses set forth in Section 3.11(b) and the last sentence of the definition of
Servicing Advances); (ii) incurred in connection with any breach of a
representation, warranty or covenant made herein; or (iii) incurred by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder. None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action unless such action is related to its respective duties under this
Agreement and, unless it is specifically required hereunder to bear the costs of
such legal action, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer or the
Special Servicer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to the enforcement and/or protection of
the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the
Certificate Account as provided in Section 3.05. In no event shall the Master
Servicer or the Special Servicer be liable or responsible for any action taken
or omitted to be taken by the other of them or by the Depositor, the Trustee or
any Certificateholder, subject to the provisions of the last paragraph of
Section 8.05.
SECTION 6.04 Resignation of Master Servicer and the Special
Servicer.
----------------------------------------------
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and the Special
Servicer shall have the right to resign at any other time provided that (i) a
willing successor thereto has been found by the Master Servicer or Special
Servicer, as applicable (ii) each of the Rating Agencies confirms in writing
that the successor's appointment will not result in a withdrawal, qualification
or downgrade of any rating or ratings assigned to any Class of Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation. Neither the Master Servicer nor the Special Servicer shall
be permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee or the Special
Servicing Fee, as the case may be, that accrues pursuant hereto from and after
the date of such transfer shall be payable to such successor.
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
----------------------------------------------------
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or Special Servicer hereunder or exercise the
rights of the Master Servicer and the Special Servicer hereunder; provided,
however, that neither the Master Servicer nor the Special Servicer shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee and, further provided, that the Depositor may not
exercise any right pursuant to Section 7.01 to terminate the Master Servicer or
the Special Servicer as a party to this Agreement. The Depositor shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06 Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee.
-----------------------------------------------
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07 Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
------------------------------------------
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08 Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
-----------------------------------------
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09 Designation of Special Servicer by the Controlling
Class.
--------------------------------------------------
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.04 (including, without limitation, Rating Agency confirmation) to serve as
Special Servicer hereunder and to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer; provided that such Holder or Holders shall pay all costs related to
the transfer of servicing if the Special Servicer is replaced other than due to
an Event of Default. Such Holder or Holders may also select a Controlling Class
Representative that may advise and direct the Special Servicer and whose
approval is required for certain actions, as described herein. Such Holder or
Holders shall so designate a Person to serve as replacement Special Servicer by
the delivery to the Trustee, the Master Servicer and the existing Special
Servicer of a written notice stating such designation. The Trustee shall,
promptly after receiving any such notice, deliver to the Rating Agencies an
executed Notice and Acknowledgment in the form attached hereto as Exhibit J-1.
If such Holders have not replaced the Special Servicer within 30 days of such
Special Servicer's resignation or the date such Special Servicer has ceased to
serve in such capacity, the Trustee shall designate a successor Special Servicer
meeting the requirements set forth in Section 6.04. Any designated Person shall
become the Special Servicer, subject to satisfaction of the other conditions set
forth below, on the date that the Trustee shall have received written
confirmation from all of the Rating Agencies that the appointment of such Person
will not result in the qualification, downgrading or withdrawal of the rating or
ratings assigned to one or more Classes of the Certificates. The appointment of
such designated Person as Special Servicer shall also be subject to receipt by
the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit J-2, executed by the designated Person, and (2) an
Opinion of Counsel (at the expense of the Person designated to become the
Special Servicer) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 6.09 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the Acknowledgment of Proposed Special Servicer the designated Person shall be
bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that the resigning Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, and it shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such resignation. Such
resigning Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the resigning Special
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the Certificate Account or the REO
Account or delivered to the Master Servicer or that are thereafter received with
respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
-------------------------------------------------
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object in writing to
the proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice within thirty (30)
days, such action shall be deemed to comply with, but not modify, the Servicing
Standard. The Trustee shall be entitled to reimbursement from the Master
Servicer or the Special Servicer, as applicable, for the reasonable expenses of
the Trustee incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that the Master Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather in the case of unusual
circumstances.
SECTION 6.11 The Controlling Class Representative.
------------------------------------
The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything herein to the contrary except as necessary or
advisable to avoid an Adverse REMIC Event and except as set forth in, and in any
event subject to, the second paragraph of this Section 6.11, the Special
Servicer will not be permitted to take any of the following actions as to which
the Controlling Class Representative has objected in writing within ten Business
Days of being notified thereof, which notification with respect to the action
described in clause (vi) below shall be copied by the Special Servicer to the
Master Servicer (provided that if such written objection has not been received
by the Special Servicer within such ten Business Day period, then the
Controlling Class Representative's approval will be deemed to have been given),
provided, however, if the Controlling Class Representative and the Special
Servicer cannot agree on a course of action within 60 days of the occurrence of
the event under discussion the Special Servicer shall implement its proposed
course of action:
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification or waiver (or consent to a modification or
waiver by the Master Servicer) of a monetary term of a Mortgage Loan other
than a modification consisting of the extension of the maturity date of a
Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan unless required by the underlying loan documents;
(vi) any waiver (or consent to a waiver by the Master Servicer) of a
"due-on-sale" clause (except with respect to any Mortgage Loan which is not
a Specially Serviced Mortgage Loan and has a then Stated Principal Balance
less than $2,500,000) or "due-on-encumbrance" clause; and
(vii) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan (except with respect to any Mortgage
Loan which is not a Specially Serviced Mortgage Loan and has a then Stated
Principal Balance less than $2,500,000).
If the Special Servicer is not required to obtain the Controlling
Class Representative's approval to the waiver of the "due-on-sale" clause and/or
assumption agreement under clauses (vi) and (vii) above, the Special Servicer
shall nonetheless promptly provide written notice to the Controlling Class
Representative of such waiver or agreement.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
this Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standard, or
expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee
to liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Controlling Class Representative may act solely in the
interests of the Holders of the Controlling Class, that the Controlling Class
Representative does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Controlling Class
Representative shall not be deemed to have been negligent or reckless, or to
have acted in bad faith or engaged in willful misfeasance, by reason of its
having acted solely in the interests of the Holders of the Controlling Class,
and that the Controlling Class Representative shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Controlling Class Representative or any director, officer, employee,
agent or principal thereof for having so acted.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
-----------------
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account, or to deposit into, or remit to the Paying Agent for
deposit into, the Distribution Account, any amount (other than a P&I
Advance) required to be so deposited or remitted by it under this
Agreement; provided, however, that if such failure to deposit or remit
occurs only once in any consecutive twelve-month period, which failure is
corrected by 10:00 a.m., New York City time on the related Distribution
Date, then with respect to such one failure only, a default shall be deemed
not to have occurred; provided further, however, that to the extent the
Master Servicer does not timely make such remittances, the Master Servicer
shall pay the Trustee for the account of the Trustee interest on any amount
not timely remitted at the Prime Rate from and including the applicable
required remittance date to but not including the date such remittance is
actually made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Certificate Account, any amount required to be so deposited or
remitted under this Agreement; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of five Business Days following the
date on which notice shall have been given to the Master Servicer, as the
case may be, by the Trustee as provided in Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer and the Special Servicer, as the
case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure period
of thirty (30) days to effect such cure so long as the Master Servicer or
the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and has provided the Trustee with
an Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be (with a copy to each
other party hereto), by the Holders of Certificates entitled to at least
25% of the Voting Rights, provided, however, that with respect to any
failure which is not curable within such 30-day period, the Master Servicer
or the Special Servicer, as the case may be, shall have an additional cure
period of thirty (30) days so long as the Master Servicer or the Special
Servicer, as the case may be, has commenced to cure within the initial
30-day period and provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to pursue, a
full cure; or
(vi) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days; or
(vii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to it or of or
relating to all or substantially all of its property; or
(viii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(ix) the consolidated net worth of the Master Servicer and of its
direct or indirect parent, determined in accordance with generally accepted
accounting principles, shall decline to less than $15,000,000; or
(x) the Trustee shall have received a written notice from Fitch
(which the Trustee shall promptly forward to the Master Servicer or the
Special Servicer, as applicable), to the effect that if the Master Servicer
or the Special Servicer, as applicable, continues to act in such capacity,
the rating or ratings on one or more Classes of Certificates will be
downgraded or withdrawn if such Master Servicer or the Special Servicer, as
applicable, is not replaced; provided, however, that the Master Servicer or
the Special Servicer, as applicable, shall have sixty (60) days to resolve
such matters to the satisfaction of Fitch (or such longer time period as
may be agreed in writing by Fitch) prior to the replacement of the Master
Servicer or the Special Servicer or the downgrade of any Class of
Certificates; or
(xi) Moody's places the ratings from any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing concerns of the Master Servicer or the Special Servicer,
as applicable, as the sole or contributory factor in such rating action and
the Master Servicer or the Special Servicer, as applicable, shall not have
resolved all such matters to the satisfaction of Moody's within sixty (60)
days (or such longer time period as may be agreed in writing by Moody's)
after such placement on "watch" status; or
(xii) the Master Servicer or the Special Servicer, as applicable is
not rated at least "CMS3" or "CSS3," as applicable, by Fitch; or
(xiii) the Master Servicer shall fail to remit to the Paying Agent
for deposit into the Distribution Account, on any P&I Advance Date, the
full amount of P&I Advances required to be made on such date, which failure
continues unremedied until 10:00 a.m. New York City time on the next
Business Day succeeding such P&I Advance Date; provided, however, that to
the extent the Master Servicer does not timely make such remittances, the
Master Servicer shall pay the Trustee for the account of the Trustee
interest on any amount not timely remitted at the Prime Rate from and
including the applicable required remittance date to but not including the
date such remittance is actually made.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i)-(ix), (xi)
and (xiii) of subsection (a) above shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies) terminate all of the rights and obligations (but
not the liabilities for actions and omissions occurring prior thereto) of the
Defaulting Party under this Agreement and in and to the Trust Fund, other than
its rights as a Certificateholder hereunder. If an Event of Default described in
clause (x) of subsection (a) above shall occur with respect to the Master
Servicer or, if applicable, the Special Servicer (in either case, under such
circumstances, for purposes of this Section 7.01(b), the "Defaulting Party"),
the Trustee shall, by notice in writing (to be sent immediately by facsimile
transmission) to the Defaulting Party (with a copy of such notice to each other
party hereto and the Rating Agencies), terminate all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund, other than its rights, if any, as a Certificateholder hereunder. From and
after the receipt by the Defaulting Party of such written notice of termination,
all authority and power of the Defaulting Party under this Agreement, whether
with respect to the Certificates (other than as a holder of any Certificate) or
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten Business
Days subsequent to its receipt of the notice of termination) provide the Trustee
with all documents and records, including those in electronic form, requested
thereby to enable the Trustee to assume the Master Servicer's or Special
Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee in effecting the termination of the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, (i) the immediate transfer to the Trustee or a
successor Master or Special Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Master
Servicer to the Certificate Account, the Distribution Account, a Servicing
Account or a Reserve Account (if the Master Servicer is the Defaulting Party) or
that are thereafter received by or on behalf of it with respect to any Mortgage
Loan or (ii) the transfer within two Business Days to the Trustee or a successor
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the REO Account,
the Certificate Account, a Servicing Account or a Reserve Account or delivered
to the Master Servicer (if the Special Servicer is the Defaulting Party) or that
are thereafter received by or on behalf of it with respect to any Mortgage Loan
or REO Property (provided, however, that the Master Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances or
otherwise, and it shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). Any cost or expenses in connection with
any actions to be taken by the Master Servicer, the Special Servicer or the
Trustee pursuant to this paragraph shall be borne by the Defaulting Party and if
not paid by the Defaulting Party within 90 days after the presentation of
reasonable documentation of such costs and expenses, such expense shall be
reimbursed by the Trust Fund; provided, however, that the Defaulting Party shall
not thereby be relieved of its liability for such expenses. If and to the extent
that the Defaulting Party has not reimbursed such costs and expenses, the
Trustee shall have an affirmative obligation to take all reasonable actions to
collect such expenses on behalf of and at the expense of the Trust Fund. For
purposes of this Section 7.01 and of Section 7.03(b), the Trustee shall not be
deemed to have knowledge of an event which constitutes, or which with the
passage of time or notice, or both, would constitute an Event of Default
described in clauses (i)-(viii) of subsection (a) above unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement.
(c) If the Master Servicer is terminated solely due to an Event of
Default under Section 7.01(a)(x), (xi) or (xii) and if the terminated Master
Servicer provides the Trustee with the appropriate "request for proposal"
materials within the five Business Days after such termination, then the Trustee
shall promptly thereafter (using such "request for proposal" materials provided
by the terminated Master Servicer) solicit good faith bids for the rights to
master service the Mortgage Loans under this Agreement from at least three (3)
Persons qualified to act as Master Servicer hereunder in accordance with
Sections 6.02 and 7.02 (any such Person so qualified, a "Qualified Bidder") or,
if three (3) Qualified Bidders cannot be located, then from as many Persons as
the Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, that the
Trustee shall not be responsible if less than three (3) or no Qualified Bidders
submit bids for the right to master service the Mortgage Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the termination of Master Servicer. The Trustee shall solicit bids (i) on
the basis of such successor Master Servicer retaining all Sub-Servicers to
continue the primary servicing of the Mortgage Loans pursuant to the terms of
the respective Sub-Servicing Agreements and to enter into a Sub-Servicing
Agreement with the terminated Master Servicer to service each of the Mortgage
Loans not subject to a Sub-Servicing Agreement at a servicing fee rate per annum
equal to the Master Servicing Fee Rate minus 2.5 basis points per Mortgage Loan
serviced (each, a "Servicing-Retained Bid") and (ii) on the basis of terminating
each Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate
in accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(c). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
SECTION 7.02 Trustee to Act; Appointment of Successor.
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On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04, be the successor in all respects to the Master Servicer or the
Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, including, without limitation, in
connection with any termination of the Master Servicer for an Event of Default
described in clause 7.01(a)(xii), the unmade P&I Advances that gave rise to such
Event of Default; provided, that if the Master Servicer is the resigning or
terminated party, and if after the Closing Date the Trustee is prohibited by law
or regulation from obligating itself to make P&I Advances (as evidenced by an
Opinion of Counsel delivered to the Depositor and the Rating Agencies) the
Trustee shall not be obligated to make such P&I Advances and provided, further,
that any failure to perform such duties or responsibilities caused by the Master
Servicer's or the Special Servicer's, as the case may be, failure to provide
information or monies required by Section 7.01 shall not be considered a default
by the Trustee hereunder. Notwithstanding anything contrary in this Agreement,
the Trustee shall in no event be held responsible or liable with respect to any
of the representations and warranties of the resigning or terminated party
(other than the Trustee) or for any losses incurred by such resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee be
required to purchase any Mortgage Loan hereunder. As compensation therefor, the
Trustee shall be entitled to all fees and other compensation which the resigning
or terminated party would have been entitled to if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above and subject to
its obligations under Section 3.22(d) and 7.01(b), the Trustee may, if it shall
be unwilling in its sole discretion to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, or shall, if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies or if the Holders of Certificates entitled
to at least 51% of the Voting Rights so request in writing to the Trustee,
promptly appoint, subject to the approval of each of the Rating Agencies (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02 (including, without
limitation, rating agency confirmation); provided, however, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. Except with respect to an appointment provided below, no
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption of the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. Notwithstanding the above, the Trustee shall, if the Master Servicer
is the resigning or terminated party and the Trustee is prohibited by law or
regulation from making P&I Advances, promptly appoint any established mortgage
loan servicing institution that has a net worth of not less than $15,000,000 and
is otherwise acceptable to each Rating Agency (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause the qualification, downgrading or withdrawal of the then current
rating on any Class of Certificates), as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder (including, without limitation,
the obligation to make P&I Advances), which appointment will become effective
immediately. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. Such successor and the
other parties hereto shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.03 Notification to Certificateholders.
----------------------------------
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence
of any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders and the Rating
Agencies notice of such occurrence, unless such default shall have been cured.
SECTION 7.04 Waiver of Events of Default.
---------------------------
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) , (ix) or (x) and (xii) of Section 7.01(a) may
be waived only by all of the Certificateholders of the affected Classes. Upon
any such waiver of an Event of Default, such Event of Default shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder. No
such waiver shall extend to any subsequent or other Event of Default or impair
any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
SECTION 7.05 Additional Remedies of Trustee Upon Event of
Default.
--------------------------------------------
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
-----------------
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein. If any such instrument is found not to
conform to the requirements of this Agreement in a material manner, the Trustee
shall take such action as it deems appropriate to have the instrument corrected.
The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor or the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts if it was required to do so;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as Paying
Agent, Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
SECTION 8.02 Certain Matters Affecting Trustee.
---------------------------------
Except as otherwise provided in Section 8.01 and Article X:
(a) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(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, except as provided in Section 10.01 or 10.02,
to institute, conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the Trustee
shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; provided, however, that nothing
contained herein shall, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default which has not been cured, to exercise such of
the rights and powers vested in it by this Agreement, and to use the same degree
of care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(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 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; provided, however, that the Trustee shall remain responsible for all
acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder;
(g) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is acting as
Master Servicer or the Special Servicer) or the Depositor; and
(h) neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s) and/or
Opinions of Counsel described in said Article applicable with respect to changes
in registration of record ownership of Certificates in the Certificate Register
and to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
SECTION 8.03 Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans.
----------------------------------------------
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.16 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall be taken as the statements of the Depositor
or the Master Servicer or the Special Servicer, as the case may be, and the
Trustee assumes no responsibility for their correctness. Except as set forth in
Section 8.16, the Trustee makes no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this Agreement.
SECTION 8.04 Trustee May Own Certificates.
----------------------------
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
it would have if it were not the Trustee or such agent.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
------------------------------------------------
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account as provided in Section
3.05(b), prior to any distributions to be made therefrom on such date, and pay
to itself all earned but unpaid Trustee Fees, as compensation for all services
rendered by the Trustee in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties of the Trustee
hereunder. The Trustee Fee (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) shall constitute
the Trustee's sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee, affiliate,
agent or "control" person within the meaning of the Securities Act of 1933 of
the Trustee shall be entitled to be indemnified for and held harmless by the
Trust Fund against any loss, liability or reasonable "out-of-pocket" expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with this Agreement, the Mortgage
Loans or the Certificates or any act of the Master Servicer or the Special
Servicer taken on behalf of the Trustee as provided for herein ("Trustee
Liability"); provided, that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (1) any liability specifically required to be borne thereby pursuant
to the terms hereof, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of its negligent disregard of
such obligations and duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The provisions
of this Section 8.05(b) shall survive any resignation or removal of the Trustee
and appointment of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
banking authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall also be an entity
with a long term unsecured debt rating of at least "AA" by Fitch and "Aa2" by
▇▇▇▇▇'▇ (determined without regard to pluses or minuses) or such other rating
that shall not result in the qualification, downgrading or withdrawal of the
rating or ratings assigned to one or more Classes of the Certificates by any
Rating Agency as confirmed in writing. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07; provided, that if the Trustee shall cease to be so eligible
because its combined capital and surplus is no longer at least $100,000,000 or
its long-term unsecured debt rating no longer conforms to the requirements of
the immediately preceding sentence, and if the Trustee proposes to the other
parties hereto to enter into an agreement with (and reasonably acceptable to)
each of them, and if in light of such agreement the Trustee's continuing to act
in such capacity would not (as evidenced in writing by each Rating Agency) cause
any Rating Agency to qualify, downgrade or withdraw any rating assigned thereby
to any Class of Certificates, then upon the execution and delivery of such
agreement the Trustee shall not be required to resign, and may continue in such
capacity, for so long as none of the ratings assigned by the Rating Agencies to
the Certificates is qualified, downgraded or withdrawn thereby. The corporation
or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates.
SECTION 8.07 Resignation and Removal of Trustee.
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(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the Swap Counterparty and to all
Certificateholders at their respective addresses set forth in the Certificate
Register. Upon receiving such notice of resignation, the Master Servicer shall
promptly appoint a successor trustee meeting the requirements in Section 8.06
and acceptable to the Depositor and the Rating Agencies by written instrument,
in duplicate, which instrument shall be delivered to the resigning Trustee and
to the successor trustee. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer, the Swap Counterparty and the
Certificateholders by the Master Servicer. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee or Paying Agent (if different than the Trustee)
shall fail (other than by reason of the failure of either the Master Servicer or
the Special Servicer to timely perform its obligations hereunder or as a result
of other circumstances beyond the Trustee's reasonable control), to timely
deliver any report to be delivered by the Trustee pursuant to Section 4.02 and
such failure shall continue unremedied for a period of five days, or if the
Trustee or Paying Agent (if different from the Trustee) fails to make
distributions required pursuant to Section 3.05(b), 4.01 or 9.01, then the
Depositor may remove the Trustee and appoint a successor trustee, if necessary,
acceptable to the Master Servicer and the Rating Agencies (as evidenced by
written confirmation therefrom to the effect that the appointment of such
institution would not cause the qualification, downgrading or withdrawal of the
then current rating on any Class of Certificates) by written instrument, in
duplicate, which instrument shall be delivered to the Trustee so removed and to
the successor trustee. A copy of such instrument shall be delivered to the
Master Servicer, the Special Servicer and the Certificateholders by the
Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor so
appointed. In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including,
without limitation, P&I Advances and accrued interest thereon) accrued or owing
to it under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08 Successor Trustee.
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(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a third-party Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and the Rating Agencies
have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee.
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Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06 and the Rating Agencies have provided confirmation pursuant to
such Section, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
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(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11 Appointment of Custodians.
-------------------------
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or the Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written, agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of assumption, obligations of the Custodian
under such agreement or alternatively, may terminate such agreement without
cause and without payment of any penalty or termination fee; and (iii) not
permit the Custodian any rights of indemnification that may be satisfied out of
assets of the Trust Fund. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of any Custodian. The
initial Custodian shall be the Trustee. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12 Appointment of Authenticating Agents.
------------------------------------
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, in accordance with the
obligations and responsibilities herein. Each Authenticating Agent must be
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to do a trust business, have a combined
capital and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of the Authenticating Agent. In the absence of any other
Person appointed in accordance herewith acting as Authenticating Agent, the
Trustee hereby agrees to act in such capacity in accordance with the terms
hereof. Notwithstanding anything herein to the contrary, if the Trustee is no
longer the Authenticating Agent, any provision or requirement herein requiring
notice or any information or documentation to be provided to the Authenticating
Agent shall be construed to require that such notice, information or
documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion, or consolidation to which any Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.12, the Trustee may appoint a
successor Authenticating Agent, in which case the Trustee shall given written
notice of such appointment to the Master Servicer, the Certificate Registrar and
the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13 Appointment of Paying Agent.
---------------------------
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. If the Paying Agent is not the
Trustee or the Master Servicer, the Trustee or the Master Servicer shall remit
to the Paying Agent on the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
a rating of at least "A" (or its equivalent) by each Rating Agency, or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies. Any such appointment of a third party Paying Agent and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Paying Agent to comply with this Agreement in all material
respects and requires the Paying Agent to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may (A) thereupon assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Paying Agent
under such agreement or (B) terminate such agreement without cause and without
payment of any penalty or termination fee; and (iii) not permit the Paying Agent
any rights of indemnification that may be satisfied out of assets of the Trust
Fund. The appointment of any Paying Agent shall not relieve the Trustee from any
of its obligations hereunder, and the Trustee shall remain responsible and
liable for all acts and omissions of any Paying Agent to the extent such Paying
Agent would have been responsible pursuant to the terms hereof. The initial
Paying Agent shall be the Trustee. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Paying Agent, any provision or
requirement herein requiring notice or any information to be provided to the
Paying Agent shall be construed to require that such notice, information or
documentation also be provided to the Trustee.
SECTION 8.14 Appointment of REMIC Administrators.
-----------------------------------
(a) The Trustee may appoint at the Trustee's expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the Trustee
in performing the functions set forth in Sections 3.17, 10.01 and 10.02 herein.
The Trustee shall cause any such REMIC Administrator to execute and deliver to
the Trustee an instrument in which such REMIC Administrator shall agree to act
in such capacity, with the obligations and responsibilities herein. The
appointment of a REMIC Administrator shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Trustee and must be organized and doing business under
the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Trustee hereby agrees to act in such capacity in accordance with the terms
hereof.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Trustee may at any time terminate the agency of
any REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
SECTION 8.15 Access to Certain Information.
-----------------------------
The Trustee shall afford to the Master Servicer, the Special
Servicer, each Rating Agency and the Depositor, any Certificateholder and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Mortgage Loans within its control that may be required to be
provided by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Trustee designated by it. Upon request and
with the consent of the Depositor and at the cost of the requesting Party, the
Trustee shall provide copies of such documentation to the Depositor, any
Certificateholder and to the OTS, the FDIC and any other bank or insurance
regulatory authority that may exercise authority over any Certificateholder.
SECTION 8.16 Representations, Warranties and Covenants of
Trustee.
--------------------------------------------
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in a material breach of,
any material agreement or other material instrument to which it is a party
or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to carry on its business as now being conducted and to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof (including with respect to any advancing
obligations hereunder), subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Trustee's good faith and reasonable judgment, is likely
to affect materially and adversely the ability of the Trustee to perform
its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Trustee to perform its
obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement or the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
(b) The Trustee represents and warrants that any custom-made
software or hardware designed or purchased or licensed by the Trustee and used
by the Trustee in the course of the operation or management of, or the
compiling, reporting or generation of data required by this Agreement does not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software or hardware to
be fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000.
SECTION 8.17 Reports to the Securities and Exchange
Commission; Available Information.
--------------------------------------
The Trustee shall prepare for filing, and execute, on behalf of the
Trust Fund, and file with the Securities and Exchange Commission, (i) each
Distribution Date Statement on Form 8-K within 15 days after each Distribution
Date in each month, (ii) before March 31 of each year, beginning March 31, 2002,
a Form 10-K and (iii) any and all reports, statements and information respecting
the Trust Fund and/or the certificates required to be filed on behalf of the
Trust Fund under the Exchange Act as the Trustee may be directed by the
Depositor, until directed in writing by the Depositor to discontinue such
filings. For any filings pursuant to the previous sentence that occur after the
first anniversary of the Closing Date, the Trustee shall receive a fee agreed
upon by the Trustee and the Depositor in a separate fee agreement. Upon such
filing with the Securities and Exchange Commission, the Trustee shall promptly
deliver to the Depositor and the Master Servicer a copy of any such executed
report, statement or information. The Depositor shall promptly file, and
exercise its reasonable best efforts to obtain a favorable response to,
no-action requests to, or requests for other appropriate exemptive relief from,
the Securities and Exchange Commission regarding the usual and customary
exemption from certain reporting requirements granted to issuers of securities
similar to the Certificates. The Depositor agrees to indemnify and hold harmless
the Trustee with respect to any liability, cost or expenses, including
reasonable attorneys' fees, arising from the Trustee's execution of such
reports, statements and information that contain errors or omissions or is
otherwise misleading, provided, however, that if the indemnification provided
for herein is invalid or unenforceable, then the Depositor shall contribute to
the amount paid by the Trustee as a result of such liability in such amount as
is necessary to limit the Trustee's responsibility for any such payment to any
amount resulting from its own negligence or willful misconduct. The Trustee
shall have no responsibility to determine whether or not any filing may be
required and shall not have any responsibility to review or confirm in any way
the accuracy or the sufficiency of the contents of any such filing.
SECTION 8.18 Maintenance of Mortgage File.
-----------------------------
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel to the Depositor and the Rating Agencies to the effect that the
Trustee's first priority interest in the Mortgage Notes has been duly and fully
perfected under the applicable laws and regulations of such other jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
---------------------------------------------
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent on behalf of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) (i) to the Certificateholders of all amounts
held by or on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder of all Mortgage Loans and each REO Property remaining in REMIC
I at a price equal to (1) the aggregate Purchase Price of all the Mortgage Loans
included in REMIC I, plus (2) the appraised value of each REO Property, if any,
included in REMIC I, such appraisal to be conducted by an Independent Appraiser
selected by the Master Servicer and approved by the Trustee, minus (3) if the
purchaser is the Master Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer, together with any interest accrued and payable to
the Master Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Master Servicer in connection with such purchase), and (B) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I, and (ii) to the Trustee, the Master
Servicer, the Special Servicer and the officers, directors, employees and agents
of each of them of all amounts which may have become due and owing to any of
them hereunder; provided, however, that in no event shall the Trust Fund created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
The Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder may at its option elect to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I as contemplated by
clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1% of the aggregate
Cut-off Date Balances of the Mortgage Loans as of the Closing Date, and (ii) the
Master Servicer shall not have the right to effect such a purchase if, within 30
days following the Master Servicer's delivery of a notice of election pursuant
to this paragraph, the Depositor, the Special Servicer, or the Majority
Subordinate Certificateholder shall give notice of its election to purchase all
of the Mortgage Loans and each REO Property remaining in REMIC I and shall
thereafter effect such purchase in accordance with the terms hereof. The Master
Servicer or the Majority Subordinate Certificateholder shall not have the right
to effect such a purchase if, within 30 days following the Special Servicer's
delivery of a notice of election pursuant to this paragraph, the Special
Servicer shall give notice of its election to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I and shall thereafter effect such
purchase in accordance with the terms hereof. If the Trust Fund is to be
terminated in connection with the Master Servicer's, the Special Servicer's or
the Majority Subordinate Certificateholder's purchase of all of the Mortgage
Loans and each REO Property remaining in REMIC I, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder, as applicable,
shall deliver to the Paying Agent for deposit in the Distribution Account not
later than the P&I Advance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur an amount in immediately
available funds equal to the above-described purchase price. In addition, the
Master Servicer shall transfer to the Distribution Account all amounts required
to be transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final deposit has been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder, as applicable, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Master
Servicer, the Special Servicer, the Majority Subordinate Certificateholder as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties to the Master Servicer, the Special Servicer, or the Majority
Subordinate Certificateholder (or their respective designees), as applicable.
Any transfer of Mortgage Loans to the Depositor pursuant to this paragraph shall
be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Master Servicer's, the Special Servicer's, or the Majority Subordinate
Certificateholder's purchase of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on or
before the Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Trustee shall give such notice to the Master Servicer,
the Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (vi) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums and Yield Maintenance
Charges, shall be deemed to be distributed in respect of the REMIC I Regular
Interests and distributed in respect of the Class R-I Certificates in accordance
with Section 4.01(a) and shall be allocated to the REMIC II Certificates and
Class A-2F Regular Interest in the order of priority set forth in Section
4.01(b) to the extent of remaining available funds.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate, and
shall deal with all such unclaimed amounts in accordance with applicable law.
The costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder.
SECTION 9.02 Additional Termination Requirements.
-----------------------------------
(a) If the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholders purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I as provided in Section 9.01, the Trust Fund (and,
accordingly, REMIC I and REMIC II) shall be terminated in accordance with the
following additional requirements, unless the Person effecting the purchase
obtains at its own expense and delivers to the Trustee and, in the case of the
Depositor, to the Trustee and the Master Servicer, an Opinion of Counsel,
addressed to the Trustee and the Master Servicer, to the effect that the failure
of the Trust Fund to comply with the requirements of this Section 9.02 will not
result in the imposition of taxes on "prohibited transactions" of REMIC I or
REMIC II as defined in Section 860F of the Code or cause REMIC I or REMIC II to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
of REMIC I and REMIC II 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, the Special
Servicer or the Majority Subordinate Certificateholders, as applicable, for
cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I and REMIC II shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each of REMIC I or REMIC II, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration.
--------------------
(a) The REMIC Administrator shall elect to treat each of REMIC I
and REMIC II as a REMIC under the Code and, if necessary, under applicable state
law. Such election will be made on Form 1066 or other appropriate federal or
state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests and the REMIC II Regular
Interests are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in REMIC I and REMIC II, respectively. The Class
R-I Certificates and the Class R-II Certificates are hereby designated as the
single class of "residual interests" (within the meaning of Section 860G(a)(2)
of the Code) in REMIC I and REMIC II, respectively. None of the Master Servicer,
the Special Servicer or the Trustee shall (to the extent within its control)
permit the creation of any other "interests" in REMIC I and REMIC II (within the
meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the REMIC I Regular Interests and the REMIC
II Regular Interests shall be March 15, 2033.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, and shall act on behalf of the related REMIC in
relation to any tax matter or controversy and shall represent the related REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority; provided that the REMIC Administrator is
hereby irrevocably appointed to act and shall act as agent and attorney-in-fact
for the Tax Matters Person for each of REMIC I and REMIC II in the performance
of its duties as such.
(e) [RESERVED].
(f) Except as otherwise provided in Section 3.17(a) and
subsections (i) and (j) below, the REMIC Administrator shall pay out of its own
funds any and all routine tax administration expenses of the Trust Fund incurred
with respect to each of REMIC I and REMIC II (but not including any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to the Trust Fund that involve the Internal Revenue Service or
state tax authorities, which extraordinary expenses shall be payable or
reimbursable to the Trustee from the Trust Fund unless otherwise provided in
Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, cause the Trustee to sign and file all of the other
Tax Returns in respect of REMIC I and REMIC II. The expenses of preparing and
filing such returns shall be borne by the REMIC Administrator without any right
of reimbursement therefor. The other parties hereto shall provide on a timely
basis to the REMIC Administrator or its designee such information with respect
to each of REMIC I and REMIC II as is in its possession and reasonably requested
by the REMIC Administrator to enable it to perform its obligations under this
Article. Without limiting the generality of the foregoing, the Depositor, within
ten days following the REMIC Administrator's request therefor, shall provide in
writing to the REMIC Administrator such information as is reasonably requested
by the REMIC Administrator for tax purposes, as to the valuations and issue
prices of the Certificates, and the REMIC Administrator's duty to perform its
reporting and other tax compliance obligations under this Article X shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the REMIC Administrator
to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate, such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any Person who is
not a Permitted Transferee; (ii) the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required hereunder); and
(iii) the Internal Revenue Service, the name, title, address and telephone
number of the Person who will serve as the representative of each of REMIC I and
REMIC.
(i) The REMIC Administrator shall perform its duties hereunder so
as to maintain the status of each of REMIC I and REMIC II as a REMIC under the
REMIC Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer, or the Trustee shall
knowingly take (or cause any of REMIC I or REMIC II to take) any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of any of REMIC I or REMIC II as a REMIC, or (ii) except as provided in
Section 3.17(a), result in the imposition of a tax upon any of REMIC I or REMIC
II (including, but not limited to, the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code or the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code (any such endangerment or imposition or,
except as provided in Section 3.17(a), imposition of a tax, an "Adverse REMIC
Event")), unless the REMIC Administrator has obtained or received an Opinion of
Counsel (at the expense of the party requesting such action or at the expense of
the Trust Fund if the REMIC Administrator seeks to take such action or to
refrain from acting for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse REMIC Event. The
REMIC Administrator shall not take any action or fail to take any action
(whether or not authorized hereunder) as to which the Master Servicer or the
Special Servicer has advised it in writing that either the Master Servicer or
the Special Servicer has received or obtained an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I or REMIC II, or
causing any of REMIC I or REMIC II to take any action, that is not expressly
permitted under the terms of this Agreement, the Master Servicer and the Special
Servicer shall consult with the REMIC Administrator or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur.
Neither the Master Servicer nor the Special Servicer shall take any such action
or cause any of REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur, and neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instructions of the REMIC Administrator. The REMIC Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Trustee or the
REMIC Administrator. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of each of REMIC I and REMIC II will consist of "qualified mortgages"
as defined in Section 860G(a)(3) of the Code and "permitted investments" as
defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I or REMIC II after the Startup Day pursuant to Section 860G(d) of the
Code, and any other tax imposed by the Code or any applicable provisions of
State or Local Tax laws (other than any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a)), such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X provided that no
liability shall be imposed upon the REMIC Administrator under this Clause if
another party has responsibility for payment of such tax under Clauses (iii) or
(v) of this Section; (ii) the Special Servicer, if such tax arises out of or
results from a breach by the Special Servicer of any of its obligations under
Article III or this Article X; (iii) the Master Servicer, if such tax arises out
of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Article X; (iv) the Trustee, if such tax arises out of
or results from a breach by the Trustee of any of its obligations under Article
IV, Article VIII or this Article X; (v) the applicable Mortgage Loan Seller, if
such tax was imposed due to the fact that any of the Mortgage Loans did not, at
the time of their transfer to REMIC I, constitute a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code; or (vi) the Trust Fund, excluding the
portion thereof constituting the Grantor Trust, in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust Fund. Any such amounts payable by the
Trust Fund shall be paid by the Paying Agent upon the written direction of the
REMIC Administrator out of amounts on deposit in the Distribution Account in
reduction of the Available Distribution Amount pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax
purposes, maintain books and records with respect to each of REMIC I and REMIC
II on a calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I or REMIC II unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC will not cause: (i) such REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding; or (ii) the imposition
of any tax on such REMIC under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or foreclosure of a Mortgage Loan, including,
but not limited to, the sale or other disposition of a Mortgaged Property
acquired by deed in lieu of foreclosure, (B) the bankruptcy of REMIC I or REMIC
II, (C) the termination of REMIC I and REMIC II pursuant to Article IX of this
Agreement, or (D) a purchase of Mortgage Loans pursuant to or as contemplated by
Article II or III of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account, the Distribution Account or the REO
Account for gain; or (iii) the acquisition of any assets for REMIC I or REMIC II
(other than (1) a Mortgaged Property acquired through foreclosure, deed in lieu
of foreclosure or otherwise in respect of a defaulted Mortgage Loan, (2) a
Qualified Substitute Mortgage Loan pursuant to Article II hereof and (3)
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account, the Distribution Account or the REO Account); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not cause: (x) REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (y) the
imposition of any tax on REMIC I or REMIC II under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee,
the Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I or REMIC II will receive a fee or other compensation for services
nor permit REMIC I or REMIC II to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02 Grantor Trust Administration.
----------------------------
(a) The REMIC Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and shall treat
the Additional Interest and the Additional Interest Account, amounts held from
time to time in the Additional Interest Account that represent Additional
Interest, the Class A-2F Regular Interest and the Swap Documents and all
payments under the Class A-2F Regular Interest and the Swap Documents, the
Floating Rate Account and all amounts held from time to time in the Floating
Rate Account and proceeds of all the foregoing as separate assets of the Grantor
Trust, and not of REMIC I or REMIC II, as permitted by Treasury Regulations
Section 1.860G-2(i)(1). The Class A-2F Certificates are hereby designated as
representing undivided beneficial interests in the Class A-2F Regular Interest,
the Swap Documents and proceeds thereof. The Class Q Certificates are hereby
designated as representing undivided beneficial interests in the Additional
Interest and proceeds thereof.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to the Grantor Trust (but not including any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect to
the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, cause the Trustee to
sign and file when due all of the Tax Returns in respect of the Grantor Trust.
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the REMIC Administrator or its
designee such information with respect to the Grantor Trust as is in its
possession and reasonably requested by the REMIC Administrator to enable it to
perform its obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within ten days following the REMIC
Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, and the REMIC Administrator's duty to perform
its reporting and other tax compliance obligations under this Section 10.02
shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the REMIC
Administrator to perform such obligations.
(d) The REMIC Administrator shall furnish or cause to be furnished
to the Class Q Certificateholders on the cash or accrual method of accounting,
as applicable, and to the Class A-2F Certificateholders on the cash or accrual
method of accounting, as applicable, such information as to their respective
portions of the income and expenses of the Grantor Trust as may be required
under the Code (provided, that income on the Class A-2F Regular Interest and
income and expenses under the Swap Documents must be reported on the accrual
method of accounting), and shall perform on behalf of the Grantor Trust all
reporting and other tax compliance duties that are required in respect thereof
under the Code, the Grantor Trust Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
(e) The REMIC Administrator shall perform its duties hereunder so
as to maintain the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special Servicer
or the Trustee shall knowingly take (or cause the Grantor Trust to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
Grantor Trust Provisions, if taken or not taken, as the case may be, could
endanger the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (any such endangerment of grantor trust status, an "Adverse
Grantor Trust Event"), unless the REMIC Administrator has obtained or received
an Opinion of Counsel (at the expense of the party requesting such action or at
the expense of the Trust Fund if the REMIC Administrator seeks to take such
action or to refrain from taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties hereto shall take
any action or fail to take any action (whether or not authorized hereunder) as
to which the REMIC Administrator has advised it in writing that the REMIC
Administrator has received or obtained an Opinion of Counsel to the effect that
an Adverse Grantor Trust Event could result from such action or failure to act.
In addition, prior to taking any action with respect to the Grantor Trust, or
causing the Trust Fund to take any action, that is not expressly permitted under
the terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the REMIC Administrator or its designee, in writing, with respect
to whether such action could cause an Adverse Grantor Trust Event to occur.
Neither the Master Servicer nor the Special Servicer shall have any liability
hereunder for any action taken by it in accordance with the written instructions
of the REMIC Administrator. The REMIC Administrator may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the cost or expense of the Trust Fund, the REMIC Administrator or the
Trustee. Under no circumstances may the REMIC Administrator vary the assets of
the Grantor Trust so as to take advantage of variations in the market so as to
improve the rate of return of Holders of the Class A-2F Certificates.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.02; or (v) the portion of the Trust Fund constituting the
Grantor Trust in all other instances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
---------
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder which shall
not be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, or (v) if such amendment, as evidenced by an Opinion of Counsel (at
the expense of the Trust Fund, in the case of any amendment requested by the
Master Servicer or Special Servicer that protects or is in furtherance of the
interests of the Certificateholders, and otherwise at the expense of the party
seeking such amendment) delivered to the Master Servicer, the Special Servicer
and the Trustee, is advisable or reasonably necessary to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to either REMIC I or REMIC II created hereunder at least from the
effective date of such amendment, or would be necessary to avoid the occurrence
of a prohibited transaction or to reduce the incidence of any tax that would
arise from any actions taken with respect to the operation of either such REMIC;
provided that such action (except any amendment described in clause (v) above)
shall not, as evidenced by an Opinion of Counsel (at the expense of the Trust
Fund, in the case of any amendment requested by the Master Servicer or Special
Servicer that protects or is in furtherance of the interests of the
Certificateholders, and otherwise at the expense of the party seeking such
amendment) obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee, adversely affect in any material respect the interests of any
Certificateholder; and provided further that the Master Servicer, the Special
Servicer and the Trustee shall have first obtained from each Rating Agency
written confirmation that such amendment will not result in the qualification,
downgrade or withdrawal of the rating on any Class of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans that are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) as evidenced by an Opinion
of Counsel obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee, adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i)
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 without the consent of the Holders
of all Certificates then outstanding, (iv) modify the provisions of Section 3.20
without the consent of the Holders of Certificates entitled to all of the Voting
Rights or (v) modify the definition of Servicing Standard or the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement, for purposes
of the giving or withholding of consents pursuant to this Section 11.01,
Certificates registered in the name of the Depositor or any Affiliate of the
Depositor shall be entitled to the same Voting Rights with respect to matters
described above as they would if any other Person held such Certificates, so
long as neither the Depositor nor any of its Affiliates is performing servicing
duties with respect to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either REMIC I or REMIC II pursuant to the REMIC Provisions or on the Grantor
Trust or cause either REMIC I or REMIC II or to fail to qualify as a REMIC or
the Grantor Trust to fail to qualify as a grantor trust at any time that any
Certificates are outstanding and (ii) such amendment complies with the
provisions of this Section 10.01. 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).
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of Certificate-
holders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Certificate Account or the Distribution
Account pursuant to Section 3.05.
SECTION 11.02 Recordation of Agreement; Counterparts.
-------------------------------------
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Certificate Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04 Governing Law.
-------------
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05 Notices.
-------
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, First Union
Commercial Mortgage Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director, facsimile number:
▇▇▇-▇▇▇-▇▇▇▇; (ii) in the case of the Master Servicer, First Union National
Bank, NC 1075, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: First Union National Bank - Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1, facsimile
number: ▇▇▇-▇▇▇-▇▇▇▇; (iii) in the case of the Special Servicer, First Union
National Bank, NC 1075, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: First Union National Bank - Bank of America, N.A.
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C1, facsimile number: ▇▇▇-▇▇▇-▇▇▇▇; (iv) in the case of the Trustee, ▇▇▇▇▇
Fargo Bank Minnesota, N.A., Corporate Trust Department, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services
(CMBS), First Union National Bank - Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1, facsimile
number ▇▇▇-▇▇▇-▇▇▇▇, (v) in the case of the Underwriters to each of First Union
Securities, Inc., First Union Capital Markets Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Attention: ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, First Union National Bank - Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1, facsimile
number: ▇▇▇-▇▇▇-▇▇▇▇, Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; (vi) in the case of the Rating Agencies, (A)
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and
(B) Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Commercial Mortgage - Backed Securities, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; (vii)
in the case of the Swap Counterparty, Bank of America, N.A. Sears Tower, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
SECTION 11.06 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
----------------------------
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets constituting the Trust
Fund.
SECTION 11.08 ▇▇▇▇▇▇ Act.
----------
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09 Successors and Assigns; Beneficiaries.
-------------------------------------
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary hereof without its consent. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10 Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11 Notices to Rating Agencies.
--------------------------
(a) The Trustee shall promptly provide notice to each Rating
Agency, the Swap Counterparty and the Controlling Class Representative with
respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Trustee, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by either of the Mortgage Loan
Sellers pursuant to the First Union Mortgage Loan Purchase Agreement or the
Bank of America Mortgage Loan Purchase Agreement;
(v) any change in the location of the Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Certificate Account.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative with respect to a non-performing or defaulted
Mortgage Loan such information as the Rating Agency or Controlling Class
Representative shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iii) any Officers' Certificate delivered to the Trustee pursuant to
Section 4.03(c) or 3.08; and
(iv) each of the reports described in Section 3.12(a) and the
statements and reports described in Sections 3.12(b), 3.12(c) and 3.12(d).
(e) The Trustee shall (i) make available to each Rating Agency and
the Controlling Class Representative, upon reasonable notice, the items
described in Section 3.15(a) and (ii) promptly deliver to each Rating Agency and
the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
(g) Notwithstanding any provision herein to the contrary each of
the Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
SECTION 11.12 Complete Agreement.
------------------
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
Special Servicer
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 30th day of March, 2001, before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ known to me to be a Vice
President of FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC. one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entities, and acknowledged to me that
such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
January 19, ▇▇▇▇
----------------------
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of March, 2001, before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ known to me to be an
Assistant Vice President of FIRST UNION NATIONAL BANK 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 30, ▇▇▇▇
----------------------
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of March, 2001, before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ known to me to be a Director
of FIRST UNION NATIONAL BANK 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 30, ▇▇▇▇
----------------------
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of March, 2001, before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ known to me to be a Vice
President of ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A. 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
November 28, 2004
----------------------
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
A-1 Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class A-1 Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [___________] OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN
INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS
Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-2 AND CLASS A-2F CERTIFICATES MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class A-1 Certificate (obtained by
dividing the principal amount of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-1 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank (in such capacity, herein called the "Master Servicer", which term includes
any successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement), and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-1 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-1 Certificates will be made by ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-1 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1 Certificates are exchangeable for new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-1
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-2.1
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
A-2 Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class A-2 Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS
Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-1 AND CLASS A-2F CERTIFICATES MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal amount of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank (in such capacity, herein called the "Master Servicer", which term includes
any successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-2 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-2 Certificates will be made by ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-2 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder to purchase from the Trust Fund all Mortgage Loans and each
REO Property remaining therein. The exercise of such right will effect early
retirement of the Class A-2 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-2.2
FORM OF CLASS A-2F CERTIFICATE
CLASS A-2F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
A2-F Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class A2-F Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), AND IN
CERTAIN OTHER ASSETS.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS
Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-1 AND CLASS A-2 CERTIFICATES MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-2F CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE EQUAL TO [_____]% IF CERTAIN EVENTS OCCUR WITH RESPECT TO
THE SWAP CONTRACT SET FORTH IN THE AGREEMENT.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class A2-F Certificate (obtained by
dividing the principal amount of this Class A2-F Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A2-F Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A2-F Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank (in such capacity, herein called the "Master Servicer", which term includes
any successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A2-F Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A2-F Certificates will be made by ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-2F Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of the actual number of days in such month.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A2-F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A2-F Certificates are exchangeable for new Class A2-F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A2-F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A2-F Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A2-F Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A2-F
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A2-F Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-3.1
FORM OF CLASS IO-I CERTIFICATE
CLASS IO-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__] Aggregate Certificate Notional Amount
of all Class IO-I Certificates as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of [__] Class IO-I Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO-I
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES AS SET FORTH IN THE AGREEMENT, THE OUTSTANDING
NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN (1) QUALIFIES AS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN
ONE OF THE TOP FOUR RATING CATEGORIES BY AT LEAST ONE RATING AGENCY OR (2) THE
PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS OF, SECTIONS I AND III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class IO-I Certificate in that certain
beneficial ownership interest evidenced by all the Class IO-I Certificates in
the Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), First Union National Bank (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. (herein called the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class IO-I Certificates
on the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Rate applicable to each Component of the Class IO-I Certificates for each
Distribution Date will equal the excess, if any, of the REMIC I Remittance Rate
for such Distribution Date over the Pass- Through Rate then applicable to the
corresponding Class of Sequential Pay Certificates. All distributions made under
the Agreement on the Class IO-I Certificates will be made by ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO-I Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO-I Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class IO-I Certificates are exchangeable for new Class IO-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class IO-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-I Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class IO-I
Certificate without registration or qualification. Any Class IO-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-I Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class IO-I Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
IO-I Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO-I
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-I Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-3.2
FORM OF CLASS IO-II CERTIFICATE
CLASS IO-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__] Aggregate Certificate Notional Amount
of all Class IO-II Certificates as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of [__] Class IO-II Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
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THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO-II
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES AS SET FORTH IN THE AGREEMENT, THE OUTSTANDING
NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN (1) QUALIFIES AS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN
ONE OF THE TOP FOUR RATING CATEGORIES BY AT LEAST ONE RATING AGENCY OR (2) THE
PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS OF, SECTIONS I AND III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class IO-II Certificate in that certain
beneficial ownership interest evidenced by all the Class IO-II Certificates in
the Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), First Union National Bank (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. (herein called the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class IO-II Certificates
on the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Rate applicable to each Component of the Class IO-II Certificates for each
Distribution Date will equal the excess, if any, of the REMIC I Remittance Rate
for such Distribution Date over the Pass- Through Rate then applicable to the
corresponding Class of Sequential Pay Certificates. All distributions made under
the Agreement on the Class IO-II Certificates will be made by ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO-II
Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class IO-II Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class IO-II Certificates are exchangeable for new Class IO-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class IO-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class IO-II
Certificate without registration or qualification. Any Class IO-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class IO-II Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
IO-II Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO-II
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-II Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-3.3
FORM OF CLASS IO-III CERTIFICATE
CLASS IO-III COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
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Pass-Through Rate: [__] Aggregate Certificate Notional Amount
of all Class IO-III Certificates as of
the Closing Date: $[__]
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Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of [__] Class IO-III Certificate as of the
Closing Date: $[__]
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Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
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First Distribution Date: [__]
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Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
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Special Servicer: First Union National
Bank
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Certificate No. 1 CUSIP No. [__]
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THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO-III
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES AS SET FORTH IN THE AGREEMENT, THE OUTSTANDING
NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN (1) QUALIFIES AS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN
ONE OF THE TOP FOUR RATING CATEGORIES BY AT LEAST ONE RATING AGENCY OR (2) THE
PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS OF, SECTIONS I AND III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class IO-III Certificate in that certain
beneficial ownership interest evidenced by all the Class IO-III Certificates in
the Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), First Union National Bank (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. (herein called the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class IO-III
Certificates on the applicable Distribution Date pursuant to the Agreement. The
Pass-Through Rate applicable to each Component of the Class IO-III Certificates
for each Distribution Date will equal the excess, if any, of the REMIC I
Remittance Rate for such Distribution Date over the Pass- Through Rate then
applicable to the corresponding Class of Sequential Pay Certificates. All
distributions made under the Agreement on the Class IO-III Certificates will be
made by ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as paying agent (the "Paying Agent"),
by wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO-III
Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class IO-III Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class IO-III Certificates are exchangeable for new Class IO-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO-III Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class IO-III Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-III Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class IO-III
Certificate without registration or qualification. Any Class IO-III
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-III Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class IO-III Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
IO-III Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO-III
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-III Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class B
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class B Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES AND THE CLASS IO-III CERTIFICATES OF THE SAME SERIES TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS A-2F CERTIFICATES OF THE SAME SERIES
ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS
G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND
CLASS Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class B Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class B Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class B Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class B
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class B
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class C
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class C Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES AND THE CLASS B
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES AND THE CLASS B
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS
E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS
O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class C Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class C Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class C Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class C Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class C
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class C
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class D
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class D Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES AND THE CLASS C CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES AND THE CLASS C CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class D Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class D Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class D Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class D Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class D
Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class D Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class D Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class D
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class D
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class E
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class E Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES AND THE CLASS D CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES AND THE CLASS D CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS
J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS Q CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class E Certificate (obtained by dividing
the principal amount of this Class E Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class E Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class E Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class E Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class E Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class E Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class E Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class E
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder to purchase from the Trust Fund all Mortgage Loans and each
REO Property remaining therein. The exercise of such right will effect early
retirement of the Class E Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class F
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class F Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES AND CLASS E
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES AND CLASS E
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class F Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class F Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class F Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class F
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class F
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class G
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class G Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N,
CLASS O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class G Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class G Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class G Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class G
Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class G Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class G Certificate without
registration or qualification. Any Class G Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class G Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class G
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class H
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class H Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date[__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J, CLASS K, CLASS L, CLASS
M, CLASS N, CLASS O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class H Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class H Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class H Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class H Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class H Certificate without
registration or qualification. Any Class H Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class H Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class H
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class J
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class J Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE CLASS H
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS Q CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class J Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class J Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class J Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class J
Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class J Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class J Certificate without
registration or qualification. Any Class J Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class J Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class J
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class K
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class K Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS L, CLASS M, CLASS N, CLASS O, CLASS P AND CLASS Q
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class K Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class K Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class K Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class K
Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class K Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class K Certificate without
registration or qualification. Any Class K Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class K Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class K Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class K
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class K
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-13
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class L
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class L Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES AND THE CLASS K CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES AND THE CLASS K CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS M, CLASS N, CLASS O, CLASS
P AND CLASS Q CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class L Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class L Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class L Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class L
Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class L Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class L Certificate without
registration or qualification. Any Class L Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class L Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class L Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class L
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class L
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-14
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK-CHASE MANHATTAN BANK
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class M
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class M Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K AND THE CLASS L CERTIFICATES
OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES AND THE CLASS L
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS N, CLASS
O, CLASS P AND CLASS Q CERTIFICATES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class M Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class M Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class M Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class M
Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class M Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class M Certificate without
registration or qualification. Any Class M Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class M Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class M Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class M
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class M
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-15
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class N
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class N Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF
THE CLASS O, CLASS P AND CLASS Q CERTIFICATES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class N Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class N Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class N Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class N
Certificates are exchangeable for new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class N Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class N Certificate without
registration or qualification. Any Class N Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class N Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class N Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class N
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class N
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-16
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class O
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class O Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS P AND CLASS Q CERTIFICATES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class O Certificate (obtained by dividing
the principal amount of this Class O Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class O Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class O Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class O Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class O Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class O Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class O
Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class O Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class O Certificate without
registration or qualification. Any Class O Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class O Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class O Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class O
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class O
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-17
FORM OF CLASS P CERTIFICATE
CLASS P COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class P
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class P Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES AND THE CLASS O
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS Q CERTIFICATES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the principal amount of this Class P Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class P Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class P Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class P Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class P Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class P Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class P
Certificates are exchangeable for new Class P Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class P Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class P Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class P Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class P Certificate without
registration or qualification. Any Class P Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class P Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class P Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class P
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class P
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-18
FORM OF CLASS Q CERTIFICATE
CLASS Q COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class Q
Certificates as of the Closing Date:
$[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [__] of this Class Q Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 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 MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] 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, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE
CLASS IO-II CERTIFICATES, THE CLASS IO-III CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE CLASS O
CERTIFICATES AND THE CLASS P CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-2F CERTIFICATES, THE CLASS B
CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE CLASS O
CERTIFICATES AND THE CLASS P CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY
THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class Q Certificate (obtained by dividing
the principal amount of this Class Q Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class Q Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class Q
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class Q Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class Q Certificates will be made by ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate, but taking into account
possible future distributions of Additional Interest) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class Q Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class Q Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class Q
Certificates are exchangeable for new Class Q Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Q Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Q Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class Q Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class Q Certificate without
registration or qualification. Any Class Q Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class Q Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class Q Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class Q
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class Q
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-19
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of [__] Class R-I Certificate: [__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 1
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-2F, CLASS
IO-I, CLASS IO-II, CLASS IO-III, 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
AND CLASS Q CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [______________________] is the registered owner
of the Percentage Interest evidenced by this Class R-I Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-I Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement), and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of the Class R-I
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-I Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-I Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class R-I Certificate without
registration or qualification. Any Class R-I Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class R-I Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of this Class R-I Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-I Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including, without
limitation, any insurance company using assets in its general or separate
account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-I Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as paying agent (the
"Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (ii)(B) of such Section 5.02(d) to
negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and shall promptly notify the Master Servicer, the
Paying Agent and the Certificate Registrar of any change or impending change in
its status as a Permitted Transferee. In connection with any proposed Transfer
of any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit I-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. The proposed
Transferor must also state in the Transfer Affidavit and Agreement that (A) it
has historically paid its debts as they have come due and intends to continue to
pay its debts as they come due in the future, (B) it understands that it may
incur tax liabilities with respect to this certificate in excess of cash flows
generated thereby, (C)it intends to pay any taxes associated with holding this
certificate as they become due, and (D) it will not transfer this certificate to
any person or entity that does not provide a similar affidavit. Any purported
transfer to a disqualified organization or other person that is not a permitted
transferee or otherwise in violation of these restrictions shall be absolutely
null and void and shall vest no rights in any purported transferee. If this
certificate represents a "non-economic residual interest", as defined in
Treasury Regulations Section 1.860E-1(c), transfers of this certificate may be
disregarded for federal income tax purposes. In order to satisfy a regulatory
safe harbor under which such transfers will not be disregarded, the transferor
may be required, among other things, to satisfy itself as to the financial
condition of the proposed transferee and either to transfer at a minimum price
or to an eligible transferee as specified in regulations.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the transfer of this Class R-I Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-I Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization", a "Plan" or a "Non-United States Person". A
"Disqualified Organization" is any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter I of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the Trustee based upon an Opinion of
Counsel provided to it that the holding of an Ownership Interest in a Class R-I
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class
R-I Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes created or organized
in, or under the laws of, the United States, any state thereof or the District
of Columbia (unless, in the case of a partnership, Treasury regulations are
enacted that provide otherwise), an estate whose income 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 Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Closing Date
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-20
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK - BANK OF AMERICA, N.A.
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of [__] Class R-II Certificate: [__]
--------------------------------------------------------------------------------
Closing Date: [__] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [__]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: ▇▇▇▇▇ Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: First Union National
Bank
--------------------------------------------------------------------------------
Certificate No. 1
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., FIRST
UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-2F, CLASS
IO-I, CLASS IO-II, CLASS IO-III, 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
AND CLASS Q CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [__________________________] is the registered
owner of the Percentage Interest evidenced by this Class R-II Certificate (as
specified above) in that certain beneficial ownership interest evidenced by all
the Class R-II Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank (in such capacity, herein called the "Master Servicer", which term includes
any successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
(herein called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of the Class R-II
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-II Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-II
Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Class R-II Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including, without
limitation, any insurance company using assets in its general or separate
account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-II Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as paying agent (the
"Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (ii)(B) of such Section 5.02(d) to
negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
Each Person holding or acquiring any Ownership Interest in this Certificate must
be a Permitted Transferee and shall promptly notify the Master Servicer, the
Paying Agent and the Certificate Registrar of any change or impending change in
its status as a Permitted Transferee. In connection with any proposed Transfer
of any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit I-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. The proposed
Transferor must also state in the Transfer Affidavit and Agreement that (A) it
has historically paid its debts as they have come due and intends to continue to
pay its debts as they come due in the future, (B) it understands that it may
incur tax liabilities with respect to this certificate in excess of cash flows
generated thereby, (C)it intends to pay any taxes associated with holding this
certificate as they become due, and (D) it will not transfer this certificate to
any person or entity that does not provide a similar affidavit. Any purported
transfer to a disqualified organization or other person that is not a permitted
transferee or otherwise in violation of these restrictions shall be absolutely
null and void and shall vest no rights in any purported transferee. If this
certificate represents a "non-economic residual interest", as defined in
Treasury Regulations Section 1.860E-1(c), transfers of this certificate may be
disregarded for federal income tax purposes. In order to satisfy a regulatory
safe harbor under which such transfers will not be disregarded, the transferor
may be required, among other things, to satisfy itself as to the financial
condition of the proposed transferee and either to transfer at a minimum price
or to an eligible transferee as specified in regulations.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the Transfer of any Class R-II Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-II Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization", a "Plan" or a "Non-United States Person". A
"Disqualified Organization" is any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter I of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the Trustee based upon an Opinion of
Counsel provided to it that the holding of an Ownership Interest in a Class R-II
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class
R-II Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes created or organized
in, or under the laws of, the United States, any state thereof or the District
of Columbia (unless, in the case of a partnership, Treasury regulations are
enacted that provide otherwise), an estate whose income from 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 Class R-II Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Closing Date
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMIC's and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: [DATE]
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
LOAN
NUMBER PROPERTY NAME ADDRESS
------ ------------- -------
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Four Office Building 1745 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Highway
2 ▇▇▇▇ ▇▇▇▇▇ Building ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3 ▇▇▇▇▇ Tech ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
4 Sierra III Office Building ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
5 RFS Hotel Portfolio-Note A Summary Page
5.1 RFS Hotel Portfolio-Residence Inn-Torrance, CA ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
5.2 RFS Hotel Portfolio-Hampton Inn-Houston, TX 8620 Airport Blvd.
5.3 RFS Hotel Portfolio-Residence Inn-Jacksonville, FL 10551 Deerwood Park Blvd.
5.4 RFS Hotel Portfolio-Hampton Inn-Jacksonville, FL 1331 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇.▇▇▇▇▇▇ Dr.
7 ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Tower ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
8 RFS Hotel Portfolio-Note B Summary Page
8.1 RFS Hotel Portfolio-Residence Inn-Atlanta, GA ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
8.2 RFS Hotel Portfolio-Holiday Inn-Flint, MI 5353 Gateway Centre
8.3 RFS Hotel Portfolio-Sheraton-Clayton, MO ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
8.4 RFS Hotel Portfolio-Holiday Inn Express-Downers Grove, IL ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10 Midway Mall ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ Dr. and ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
12 ▇▇▇▇ Factory Outlet World ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
13 Providence Place Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
14 Cayman Bay Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
15 Registry at Windsor Parke ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
16 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ & 27th Ave
18 Heatherwood Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
20 Trophy Chase Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
21 Palisades Apartments ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
22 Fountain Valley Plaza 18020-18122 Brookhurst St.
23 Mercy Medical Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
24 Morristown Professional Plaza 95 Madison Avenue
25 Arbor Mill Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
26 Foxfire Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
27 ▇▇▇▇▇ Industrial 104, 410 & ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
28 La Jolla Canyon Apartments ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
29 Jefferson at Cool Springs Apartments ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 24500 Clawiter Rd & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
32 Pacific Bay Club Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
33 Northern Oaks Apts ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
37 Coventry Plaza ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
38 Rosewood Care Center - Swansea ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
39 Augusta Corporate Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
40 ▇▇▇▇▇▇ ▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
42 Pine Tree Plaza - ▇▇▇▇▇▇▇ 1515-1595 N. Illinois ▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Industrial ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
44 Holiday Inn Elmhurst ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇
45 Homewood Suites-Baltimore ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ Business Park ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
47 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Plaza Shopping Center ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
52 The Lumberyard Shopping Center 725-1031 ▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Gaelic Lane
55 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
56 ▇▇▇▇▇▇▇▇▇ Plaza Shopping Center 5750-5890 ▇▇▇▇▇ School ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇.
58 Watauga Village Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
59 Foxhill Townhomes 1501-1709 ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Shopping Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
62 ETC Carpet ▇▇▇▇▇ Building ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
63 Desert Professional Plaza ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
64 Nieuw Amsterdam ▇▇ ▇. ▇▇▇▇▇ ▇▇▇.
65 Maple Leaf Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
66 Crescent Gardens ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
67 Clearwater Bank Tower 600 Cleveland St.
68 The Verandahs at White Rock ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
69 Lincoln Park Apartments and Townhomes ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
70 Val Vista Marketplace ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
71 ▇▇▇▇▇▇ ▇▇▇▇▇ Shopping Center ▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
72 Centre Stage Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
73 Raley's Center ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
76 Paradise Trails Apartments ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
77 Homewood Suites-Clearwater ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Center 3805 and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Showroom ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
81 Northpointe Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
82 Homewood Suites-Richmond ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 29 Lakeview Terr.
84 Kensington Apartments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
87 Bank of America Call Center ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ I and III 11300 and 11401-11461 ▇▇▇▇ Drive
89 Westview Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ Apartments ▇▇▇-▇▇▇ ▇.▇. ▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & Country II ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
92 Promenade of Coral Springs 1933 - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
93 Woodlands Apartments 10032 Sheffingdel Court
94 Alameda Shopping Center ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
95 ▇▇▇▇▇▇▇▇ Place Retail Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ Medical Center ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
97 Post & Coach Apartments ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
98 1545 ▇▇▇▇ ▇▇▇▇▇▇ Office Building 1545 26th ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
101 El Gato Village Shopping Center 15710 Los Gatos Boulevard
102 BB&T Building ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
103 ▇▇▇▇▇ Creek Professional Buildings 3855, 3875, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ (▇▇▇▇▇ 8)
105 BayMeadow 6704 ▇▇▇▇▇▇ Court
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Retail ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ Medical Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ Builder's First Source ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ North
111 Independence Commons Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇'▇ - ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
114 Cypress Run Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
116 Yonkers Board of Education Building ▇▇ ▇▇▇▇▇ ▇▇▇
117 MV Apartments ▇▇▇▇ ▇. ▇▇▇ ▇▇▇.
118 Fiesta Del Norte Shopping Center ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
119 Staples Center 9260 Mentor Avenue
120 Rite Aid - Store #6260 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
121 Walgreen's - ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ West Overland Road
122 Homewood Suites-Norcross ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
123 Franciscan Health Medical ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ Garden Apartments 5610 - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
126 ▇▇▇▇▇▇▇ Gate Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
127 Basswood Crossing Shopping Center 7431 and ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
128 Jetport Commerce Ctr I, II and III ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ & 13891 Jetport Loop Road
129 Homewood Suites-Detroit 30180 North Civic Center Boulevard
130 CVS - Myrtle Beach, SC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ Shopping Center ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇ ▇▇▇▇▇▇▇ ▇▇)
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. & Manufacturing Drive
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
134 Mt. View ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
135 Pacific Center-▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
136 Boiling Springs Centre ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
137 Pacific Center-Turnwater ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping Center ▇▇▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
141 Juliet Office Building ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
142 Cambridge Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
143 Walgreen's - White Eagle ▇▇▇ ▇▇ & ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
145 Northwood Lake Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
147 ▇▇▇▇▇ Corner ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
148 Eckerd - ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Court
150 BPL Office Building ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
151 CVS - Little River, SC 1308 Highway 17
152 Ashbrier Apartments ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
153 Vanguard Industrial Building 5214-5234 Vanguard Street
154 Bromley Shopping Center ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
155 Warwick Terrace ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Corporate Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
157 Danube Plaza Shopping Center ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Office ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
159 El Adobe Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
160 Plaza 44 Shopping Center ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇.
161 Staples - Decatur, AL ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Avenue
163 1212 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
164 ▇▇▇▇▇▇ Shopping Center ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10 ▇▇▇▇▇▇▇ Drive
166 Ironwood Villas Apartments 23145-23167 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ and Kings Retail Center 5626-5630 & ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
170 Westport Village Apartments 811 & ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
171 Chandler Auto Plaza ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
172 Chicago Apartments 12901, 13242 and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
174 Hollywood Video ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
175 Corona Apartments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHP ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
177 Vermont Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
178 Hospitality Inn of Sarasota ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
179 Tanglewood ▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
180 ▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Apartments ▇▇▇ ▇▇ ▇▇▇▇ ▇▇.
182 Bloomfield-AutoZone ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
(cont'd)
ORIGINAL REMAINING
MONTHLY TERM TO TERM TO
CUT-OFF P&I MATURITY MATURITY
LOAN ZIP DATE LOAN PAYMENTS MORTGAGE OR ARD OR ARD MATURITY
NUMBER CITY STATE CODE BALANCE ($) ($) RATE (%) (MOS.) (MOS.) DATE OR ARD
------ ---- ----- ---- ----------- -------- -------- -------- --------- -----------
1 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 49,844,016 369,203 8.067% 120 115 10/1/10
2 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 45,905,483 334,970 7.920% 120 117 12/1/10
3 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 40,413,874 290,147 7.750% 120 117 12/1/10
4 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 27,121,913 202,663 8.160% 120 115 10/1/10
5 Multiple Multiple 26,550,839 206,198 8.000% 120 114 9/1/10
5.1 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
5.2 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
5.3 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
5.4 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
6 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 25,932,760 197,827 7.790% 120 114 9/1/10
7 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 25,364,614 189,783 8.150% 120 111 6/1/10
8 Multiple Multiple 25,326,456 196,690 8.000% 120 114 9/1/10
8.1 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
8.2 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
8.3 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
8.4 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 25,133,039 186,492 8.090% 120 116 11/1/10
10 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 24,550,092 172,999 7.375% 117 100 7/1/09
11 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 23,921,563 173,767 7.860% 120 115 10/1/10
▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 23,702,380 163,885 7.260% 120 103 10/1/09
13 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 20,183,996 146,965 7.890% 120 116 11/1/10
14 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 19,239,355 143,739 8.170% 120 117 12/1/10
15 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 18,760,000 134,658 7.770% 120 117 12/1/10
16 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 18,404,922 142,174 7.950% 120 115 10/1/10
17 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 18,129,889 133,672 8.010% 120 114 9/1/10
18 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 16,250,000 99,531 7.350% 120 118 1/1/11
19 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 15,225,764 110,944 7.910% 120 118 1/1/11
20 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 15,000,000 91,875 7.350% 120 118 1/1/11
21 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 14,942,852 110,693 8.060% 120 114 9/1/10
22 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,954,274 109,434 8.660% 120 110 5/1/10
23 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,913,154 107,869 7.980% 120 114 9/1/10
24 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,000,000 95,208 7.980% 120 114 9/1/10
25 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,650,000 91,590 7.860% 120 117 12/1/10
26 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,630,000 92,059 7.930% 120 117 12/1/10
27 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,629,383 90,626 7.750% 120 118 1/1/11
28 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,081,128 89,039 8.030% 120 118 1/1/11
29 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,000,000 73,507 7.250% 120 117 12/1/10
30 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,000,000 88,638 8.070% 120 118 1/1/11
31 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,693,322 93,270 8.327% 120 115 10/1/10
32 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,681,752 86,095 8.030% 120 118 1/1/11
33 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,416,645 84,793 8.100% 120 116 11/1/10
34 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,780,119 85,986 8.327% 120 115 10/1/10
35 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,500,000 64,313 7.350% 120 118 1/1/11
36 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,466,521 76,826 7.970% 120 115 10/1/10
37 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,101,202 69,070 7.250% 120 117 12/1/10
38 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,096,291 85,143 8.890% 120 104 11/1/09
39 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,770,679 73,624 8.250% 120 115 10/1/10
40 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,500,000 58,188 7.350% 120 118 1/1/11
41 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,500,000 58,188 7.350% 120 118 1/1/11
42 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,485,345 70,371 8.100% 120 118 1/1/11
43 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,119,520 64,590 7.620% 120 119 2/1/11
▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,081,532 76,263 8.850% 120 105 12/1/09
45 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,961,628 75,528 9.000% 120 115 10/1/10
46 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,961,127 68,809 7.890% 120 116 11/1/10
47 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,955,254 70,300 8.140% 120 115 10/1/10
48 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,676,409 63,777 7.990% 120 116 11/1/10
49 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,473,862 63,142 8.130% 120 115 10/1/10
50 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,365,417 62,870 8.210% ▇▇▇ ▇▇▇ ▇/▇/▇▇
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,362,990 61,373 7.980% 120 117 12/1/10
52 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,228,300 61,343 8.140% 120 116 11/1/10
53 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,111,429 64,174 8.220% 120 114 9/1/10
54 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,000,000 49,000 7.350% 120 118 1/1/11
55 ▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,734,300 56,813 7.990% 120 117 12/1/10
56 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,730,410 57,825 7.250% 120 92 11/1/08
57 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,722,410 61,597 8.327% 120 115 10/1/10
58 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,591,221 53,349 7.540% 120 119 2/1/11
59 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,437,858 53,373 7.750% 120 118 1/1/11
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,253,760 52,399 7.770% 120 110 5/1/10
61 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,238,971 54,161 8.190% 120 118 1/1/11
62 ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,155,945 55,857 8.060% 120 114 9/1/10
63 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,108,087 52,962 8.100% 120 110 5/1/10
64 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,929,355 55,271 8.327% 120 115 10/1/10
65 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,830,236 53,380 7.860% 120 97 4/1/09
66 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,494,437 51,802 8.327% 120 115 10/1/10
67 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,458,708 46,325 7.740% 120 117 12/1/10
68 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,437,738 48,046 8.110% 120 109 4/1/10
69 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,402,085 51,065 8.327% 120 115 10/1/10
70 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,346,198 47,848 8.240% 120 112 7/1/10
71 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,300,000 44,310 7.560% 120 117 12/1/10
72 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,287,212 46,139 7.980% 120 117 12/1/10
73 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,134,470 46,593 8.340% 120 116 11/1/10
74 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,027,052 44,731 8.080% 120 114 9/1/10
75 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,000,000 36,750 7.350% 120 118 1/1/11
76 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,983,498 43,692 7.920% 120 116 11/1/10
77 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,974,419 50,352 9.000% 120 115 10/1/10
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,964,493 47,159 8.740% 120 108 3/1/10
79 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,784,463 42,761 8.050% 120 116 11/1/10
80 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,680,755 40,694 7.714% 120 115 10/1/10
81 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,511,117 41,001 8.125% 120 117 12/1/10
82 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,476,551 46,156 9.000% 120 115 10/1/10
83 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,423,772 43,262 8.327% 120 115 10/1/10
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,165,179 39,097 8.310% 120 117 12/1/10
85 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,000,000 30,625 7.350% 120 118 1/1/11
86 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,987,140 37,563 8.250% 120 116 11/1/10
87 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,974,214 38,359 7.930% 120 115 10/1/10
88 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,879,342 37,949 8.040% 120 116 11/1/10
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,869,932 35,468 7.900% 120 117 12/1/10
90 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,745,027 35,027 8.030% 120 115 10/1/10
91 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,713,117 35,863 8.360% 120 116 11/1/10
92 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,440,969 32,591 7.980% 120 117 12/1/10
▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,224,654 31,973 8.290% 120 114 9/1/10
94 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,183,796 35,871 9.130% 120 107 2/1/10
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,161,093 31,583 8.260% 120 104 11/1/09
96 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,160,000 30,467 7.980% 120 114 9/1/10
97 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,146,849 33,077 8.327% 120 115 10/1/10
98 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,087,277 30,342 8.090% 120 115 10/1/10
99 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,031,702 30,398 8.240% 120 112 7/1/10
100 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,920,000 28,491 7.900% 120 116 11/1/10
101 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,828,441 28,062 7.930% 120 111 6/1/10
102 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,821,133 28,393 8.100% 120 115 10/1/10
103 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,742,496 27,647 8.050% 120 117 12/1/10
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,710,432 27,947 8.250% 120 116 11/1/10
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,640,000 26,658 7.980% 120 114 9/1/10
106 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,524,219 25,216 7.720% 120 118 1/1/11
107 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,500,000 25,633 7.980% 120 114 9/1/10
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,394,459 24,358 7.750% 120 118 1/1/11
109 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,335,246 25,380 8.340% 120 112 7/1/10
110 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,317,707 25,742 7.500% 120 89 8/1/08
111 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,231,214 23,751 7.990% 120 116 11/1/10
112 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,196,368 23,551 8.010% 120 115 10/1/10
113 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,105,172 22,950 8.060% 120 118 1/1/11
114 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,024,819 23,640 7.860% 120 97 4/1/09
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,994,307 22,665 8.310% 120 117 12/1/10
116 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,966,099 25,795 8.420% 120 115 10/1/10
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,920,140 21,566 8.040% 120 116 11/1/10
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,919,580 22,551 8.470% 120 107 2/1/10
119 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,917,243 21,667 8.100% 120 116 11/1/10
120 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,874,152 21,702 8.190% 84 66 9/1/06
121 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,797,718 20,691 8.050% 120 115 10/1/10
122 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,788,062 23,498 9.000% 120 115 10/1/10
123 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,700,000 19,774 7.980% 120 114 9/1/10
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,695,756 19,774 7.980% 120 118 1/1/11
125 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,660,025 20,763 8.570% 120 104 11/1/09
126 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,634,520 20,589 7.860% 120 97 4/1/09
127 Ft. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,593,063 19,205 8.070% 120 116 11/1/10
128 Ft. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,493,811 19,111 8.437% 120 116 11/1/10
129 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,489,341 20,980 9.000% 120 115 10/1/10
130 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,467,302 18,299 8.080% 120 115 10/1/10
131 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,432,616 18,245 8.200% 120 115 10/1/10
132 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,431,148 17,765 7.940% 120 118 1/1/11
133 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,400,000 17,194 7.750% 120 120 3/1/11
134 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,371,139 18,614 8.150% 120 116 11/1/10
135 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,369,921 17,891 8.270% 120 115 10/1/10
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,329,694 17,728 8.340% 120 112 7/1/10
137 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,326,026 17,552 8.270% 120 116 11/1/10
138 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,296,216 16,382 7.690% 120 118 1/1/11
139 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,240,847 16,919 8.260% 120 113 8/1/10
140 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,234,147 16,707 8.173% 120 116 11/1/10
141 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,221,543 16,430 8.055% 120 116 11/1/10
142 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,218,639 16,799 7.740% 120 117 12/1/10
143 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,196,414 15,761 7.750% 120 118 1/1/11
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,164,564 15,959 8.000% 120 112 7/1/10
145 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,143,750 16,342 8.375% 120 115 10/1/10
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,089,274 16,785 8.910% 120 107 2/1/10
147 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,040,406 15,185 8.100% 120 112 7/1/10
148 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,007,384 15,149 8.210% 120 106 1/1/10
149 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,994,367 14,400 7.802% 120 116 11/1/10
150 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,986,977 14,880 8.200% 120 118 1/1/11
151 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,971,485 14,300 7.850% 120 116 11/1/10
152 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,942,538 14,363 8.040% 120 114 9/1/10
153 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,897,918 14,953 8.160% 120 113 8/1/10
154 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,878,128 15,515 8.690% 120 109 4/1/10
155 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,869,114 14,909 8.327% 120 115 10/1/10
156 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,830,394 14,382 8.660% 120 107 2/1/10
157 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,822,254 15,012 8.690% 120 112 7/1/10
158 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,819,694 13,928 8.360% 120 105 12/1/09
159 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,684,673 12,533 8.125% 120 117 12/1/10
160 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,666,959 12,853 8.510% 120 117 12/1/10
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,626,157 12,398 7.820% 120 117 12/1/10
162 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,595,129 12,615 8.250% 120 117 12/1/10
163 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,497,739 11,269 8.250% 120 118 1/1/11
164 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,485,631 10,815 7.900% 120 118 1/1/11
165 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,397,539 11,147 8.327% 120 115 10/1/10
166 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,377,841 10,136 8.010% 120 118 1/1/11
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,365,772 10,649 8.600% 120 111 6/1/10
168 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,294,729 10,276 8.280% 120 116 11/1/10
169 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,238,952 9,532 8.480% 120 116 11/1/10
170 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,231,904 9,387 8.375% 120 116 11/1/10
171 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,097,267 8,396 8.420% 120 116 11/1/10
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,037,950 8,405 8.490% 120 113 8/1/10
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 930,276 7,440 8.330% 120 112 7/1/10
174 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 928,875 7,702 8.800% 112 107 2/1/10
175 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 924,444 7,551 8.625% 120 116 11/1/10
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 877,904 6,845 8.625% 120 116 11/1/10
177 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 874,010 7,515 9.210% 120 111 6/1/10
178 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 855,040 8,380 8.130% 120 114 9/1/10
179 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 712,965 5,687 8.327% 120 115 10/1/10
180 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 598,496 4,560 8.375% 120 116 11/1/10
181 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 590,516 4,500 8.375% 120 116 11/1/10
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 417,631 3,390 8.530% 120 114 9/1/10
(cont'd)
MATURITY ORIGINAL REMAINING SECURED
DATE OR ARD AMORT AMORT BY A MASTER ANTICIPATED
LOAN BALLOON TERM TERM GROUND SERVICING ARD REPAYMENT
NUMBER BALANCE ($) (MOS.) (MOS.) LEASE FEE RATE LOAN? DATE
------ ----------- -------- --------- ------- --------- ----- -----------
1 44,845,216 360 355 N 0.0757% N NA
2 41,049,864 360 357 N 0.0500% Y 12/1/10
3 35,993,263 360 357 N 0.0500% Y 11/1/10
4 24,453,444 360 355 N 0.0757% N NA
5 22,066,442 300 294 N 0.0554% N NA
5.1 NA
5.2 NA
5.3 NA
5.4 NA
6 21,374,325 300 294 N 0.0500% N NA
7 22,912,536 360 351 N 0.1264% N NA
8 21,048,854 300 294 N 0.0554% N NA
8.1 NA
8.2 NA
8.3 NA
8.4 NA
9 22,575,966 360 356 N 0.0500% N NA
10 21,840,455 351 334 N 0.1264% N NA
11 21,420,833 360 355 N 0.1264% N NA
12 21,114,471 360 343 N 0.1264% N NA
13 18,046,395 360 356 N 0.0500% N NA
14 17,304,720 360 357 N 0.0500% N NA
15 17,239,406 360 360 N 0.0500% N NA
16 15,264,411 300 295 N 0.1264% N NA
17 16,296,094 360 354 N 0.1264% N NA
18 16,250,000 NA NA N 0.0500% N NA
19 13,603,115 360 358 N 0.0500% N NA
20 15,000,000 NA NA N 0.0500% N NA
21 13,446,575 360 354 N 0.1264% N NA
22 12,753,643 360 350 N 0.1264% N NA
23 11,528,466 300 294 N 0.0500% N NA
24 12,156,964 360 360 N 0.0500% N NA
25 12,096,456 360 360 N 0.0500% N NA
26 12,086,109 360 360 N 0.0500% N NA
27 11,240,326 360 358 N 0.0500% N NA
28 10,824,189 360 358 N 0.0500% N NA
29 12,000,000 NA NA N 0.0500% N NA
30 11,085,880 360 360 N 0.0500% N NA
31 10,467,615 295 295 N 0.1264% Y 10/1/10
32 10,466,365 360 358 N 0.0500% N NA
33 10,257,454 360 356 N 0.0500% N NA
34 9,650,134 295 295 N 0.1264% Y 10/1/10
35 10,500,000 NA NA N 0.0500% N NA
36 9,381,732 360 355 N 0.0500% N NA
37 8,886,127 360 357 N 0.0500% N NA
38 8,669,248 300 284 N 0.1264% N NA
39 8,827,107 360 355 N 0.1264% N NA
40 9,500,000 NA NA N 0.0500% N NA
41 9,500,000 NA NA N 0.0500% N NA
42 8,512,371 360 358 N 0.0500% N NA
43 8,085,317 360 359 N 0.0500% N NA
44 7,785,879 300 285 N 0.1264% N NA
45 7,624,559 300 295 N 0.0500% N NA
46 7,410,010 300 296 N 0.1264% N NA
47 7,466,049 300 295 N 0.1264% N NA
48 7,775,666 360 356 N 0.0500% N NA
49 7,634,981 360 355 N 0.1264% N NA
50 7,557,790 360 353 N 0.1264% N NA
51 7,488,956 360 357 N 0.0500% N NA
52 7,399,618 360 356 N 0.0500% N NA
53 6,781,723 300 294 N 0.1264% N NA
54 8,000,000 NA NA N 0.0500% N NA
55 6,938,209 360 357 N 0.1264% N NA
56 6,466,212 300 272 N 0.1264% N NA
57 6,899,312 295 295 N 0.0500% Y 10/1/10
58 6,717,052 360 359 N 0.0500% N NA
59 6,619,797 360 358 N 0.0500% N NA
60 6,503,122 360 350 N 0.1264% N NA
61 6,509,969 360 358 N 0.0500% N NA
62 5,957,053 300 294 N 0.1264% N NA
63 6,419,520 360 350 Y 0.1264% N NA
64 6,190,785 295 295 N 0.0500% Y 10/1/10
65 5,763,140 300 277 N 0.1264% N NA
66 5,802,223 295 295 N 0.0500% Y 10/1/10
67 5,760,024 360 357 N 0.1264% N NA
68 5,817,324 360 349 N 0.1264% N NA
69 5,731,011 295 295 N 0.1264% Y 10/1/10
70 5,742,227 360 352 N 0.1264% N NA
71 5,766,720 360 360 N 0.0500% N NA
72 5,638,763 360 357 N 0.1264% N NA
73 5,541,691 360 356 N 0.0500% N NA
74 5,425,983 360 354 N 0.1264% N NA
75 6,000,000 NA NA N 0.0500% N NA
76 5,353,575 360 356 N 0.0500% N NA
77 5,083,039 300 295 N 0.0500% N NA
78 5,468,608 360 348 N 0.1264% N NA
79 5,191,157 360 356 N 0.0500% N NA
80 5,069,581 360 355 N 0.1264% N NA
81 4,951,808 360 357 N 0.0500% N NA
82 4,659,452 300 295 N 0.0500% N NA
83 4,845,675 295 295 N 0.0500% Y 10/1/10
84 4,660,644 360 357 N 0.0500% N NA
85 5,000,000 NA NA N 0.0500% N NA
86 4,496,113 360 356 N 0.0500% N NA
87 4,123,158 300 295 N 0.1264% N NA
88 4,051,598 300 296 N 0.1264% N NA
89 4,352,764 360 357 N 0.0500% N NA
90 4,265,614 360 355 N 0.1264% N NA
91 4,259,590 360 356 N 0.0500% N NA
92 3,982,936 360 357 N 0.1264% N NA
93 3,821,113 360 354 N 0.1264% N NA
94 3,603,085 300 287 N 0.1264% N NA
95 3,784,183 360 344 N 0.1264% N NA
96 3,890,228 360 360 N 0.0500% N NA
97 3,712,171 295 295 N 0.1264% Y 10/1/10
98 3,679,327 360 355 N 0.1264% N NA
99 3,648,003 360 352 N 0.1264% N NA
100 3,610,473 360 360 N 0.0500% N NA
101 3,441,540 360 351 N 0.1264% N NA
102 3,440,524 360 355 N 0.1264% N NA
103 3,361,935 360 357 N 0.1264% N NA
104 3,345,107 360 356 N 0.0500% N NA
105 3,403,950 360 360 N 0.0500% N NA
106 3,134,331 360 358 N 0.0500% N NA
107 3,273,029 360 360 N 0.0500% N NA
108 3,021,115 360 358 N 0.0500% N NA
109 3,024,405 360 352 N 0.1264% N NA
110 2,766,407 292 261 N 0.1264% N NA
111 2,899,567 360 356 N 0.1264% N NA
112 2,872,114 360 355 N 0.1264% N NA
113 2,784,059 360 358 N 0.0500% N NA
114 2,552,249 300 277 N 0.1264% N NA
115 2,701,822 360 357 N 0.0500% N NA
116 2,149,171 240 235 N 0.1264% N NA
117 2,620,019 360 356 N 0.0500% N NA
118 2,661,803 360 347 N 0.1264% N NA
119 2,621,041 360 356 N 0.0500% N NA
120 2,727,691 360 342 N 0.1264% N NA
121 2,516,196 360 355 N 0.1264% N NA
122 2,372,084 300 295 N 0.0500% N NA
123 2,524,908 360 360 Y 0.0500% N NA
124 2,412,451 360 358 N 0.0500% N NA
125 2,434,342 360 344 N 0.1264% N NA
126 2,222,926 300 277 N 0.1264% N NA
127 2,331,174 360 356 N 0.1264% N NA
128 2,257,707 360 356 N 0.0500% N NA
129 2,117,933 300 295 N 0.0500% N NA
130 2,220,539 360 355 N 0.1264% N NA
131 2,195,243 360 355 N 0.1264% N NA
132 2,173,599 360 358 N 0.0500% N NA
133 2,133,797 360 360 N 0.0500% N NA
134 1,970,101 300 296 N 0.0850% N NA
135 2,142,005 360 355 N 0.1264% N NA
136 2,112,569 360 352 N 0.1264% N NA
137 2,100,549 360 356 N 0.1264% N NA
138 2,040,698 360 358 N 0.0500% N NA
139 2,026,734 360 353 N 0.1264% N NA
140 2,010,659 360 356 N 0.0500% N NA
141 1,996,494 360 356 N 0.1264% N NA
142 1,825,509 300 297 N 0.1264% N NA
143 1,954,839 360 358 N 0.0500% N NA
144 1,948,178 360 352 N 0.1264% N NA
145 1,939,298 360 355 N 0.0500% N NA
146 1,921,753 360 347 N 0.1264% N NA
147 1,840,532 360 352 N 0.1264% N NA
148 1,821,444 360 346 N 0.1264% N NA
149 1,781,884 360 356 N 0.1264% N NA
150 1,787,291 360 358 N 0.0500% N NA
151 1,763,416 360 356 N 0.1264% N NA
152 1,747,238 360 354 N 0.1264% N NA
153 1,585,911 300 293 N 0.1264% N NA
154 1,597,181 300 289 N 0.1264% N NA
155 1,669,893 295 295 N 0.0500% Y 10/1/10
156 1,675,259 360 347 N 0.1264% N NA
157 1,545,957 300 292 N 0.2278% N NA
158 1,657,752 360 345 N 0.1264% N NA
159 1,513,700 360 357 N 0.0500% N NA
160 1,510,886 360 357 N 0.0850% N NA
161 1,341,058 300 297 N 0.1264% N NA
162 1,327,858 300 297 N 0.0500% N NA
163 1,348,766 360 358 N 0.0500% N NA
164 1,326,990 360 358 N 0.0500% N NA
165 1,248,581 295 295 N 0.0500% Y 10/1/10
166 1,233,910 360 358 N 0.0500% N NA
167 1,245,668 360 351 N 0.2278% N NA
168 1,079,606 300 296 N 0.0500% N NA
169 1,122,721 360 356 N 0.0500% N NA
170 1,113,735 360 356 N 0.0500% N NA
171 993,008 360 356 N 0.0850% N NA
172 874,935 300 293 N 0.2278% N NA
173 781,868 300 292 N 0.2278% N NA
174 802,447 300 295 N 0.2278% N NA
175 778,070 300 296 N 0.0500% N NA
176 798,076 360 356 N 0.0500% N NA
177 751,592 300 291 N 0.2278% N NA
178 429,944 180 174 N 0.2278% N NA
179 636,973 295 295 N 0.0500% Y 10/1/10
180 541,086 360 356 N 0.0500% N NA
181 533,871 360 356 N 0.0500% N NA
182 352,053 300 294 N 0.2278% N NA
(cont'd)
CROSS IS THE
COLLATERALIZED LOAN AN
AND CROSS LETTER INTEREST
LOAN LOAN DEFAULTED DEFEASANCE OF RESERVE
NUMBER INTEREST RATE FOR ARD LOAN SELLER LOAN FLAG LOAN? CREDIT LOAN? LOCKBOX
------ -------------------------- ------ -------------- ---------- ------ -------- -------
1 NA BOA Y N Y Springing
2 10.42% FUNB Y N Y Springing
3 10.25% FUNB Y N Y Modified
4 NA BOA Y N Y Springing
5 NA BOA RFS Y N Y Hard
5.1 NA BOA RFS Y Hard
5.2 NA BOA RFS Y Hard
5.3 NA BOA RFS Y Hard
5.4 NA BOA RFS Y Hard
6 NA FUNB Y N Y None
7 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇ ▇▇ BOA RFS Y N Y Hard
8.1 NA BOA RFS Y Hard
8.2 NA BOA RFS Y Hard
8.3 NA BOA RFS Y Hard
8.4 NA BOA RFS Y Hard
9 NA FUNB Y N Y None
10 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y Hard
12 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
14 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
16 NA BOA Y N Y None
17 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Cornerstone Y N Y Springing
19 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Cornerstone Y N Y Springing
21 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y None
23 NA FUNB HCPI Y N Y None
24 NA FUNB HCPI Y N Y None
25 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
27 NA FUNB Y N Y None
28 NA FUNB ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
31 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 BOA N ▇ ▇ ▇▇▇▇
▇▇ ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB N N Y None
34 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 BOA N Y Y None
35 NA FUNB Cornerstone Y N Y Springing
36 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
38 NA BOA Y N Y Hard
39 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Cornerstone Y N Y Springing
41 NA FUNB Cornerstone Y N Y Springing
42 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
44 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Homewood Y N Y None
46 NA BOA Y N Y None
47 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
49 NA BOA Y N Y None
50 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
52 NA FUNB Y N Y None
53 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Cornerstone Y N Y Springing
55 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y None
57 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
58 NA FUNB Y N Y None
59 NA FUNB Y N Y None
60 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
62 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y None
64 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
▇▇ ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
67 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y None
69 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 BOA N ▇ ▇ ▇▇▇▇
▇▇ ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
72 NA BOA Y N Y Springing
73 NA FUNB Y N Y None
74 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Cornerstone Y N Y Springing
76 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Homewood Y N Y None
78 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
80 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y Springing
82 NA FUNB Homewood Y N Y None
83 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
84 NA FUNB Y N Y None
85 NA FUNB Cornerstone Y N Y Springing
86 NA FUNB Y N Y None
87 NA BOA Y N Y None
88 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
90 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ FUNB Y N Y None
92 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y None
94 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇ ▇▇ BOA Y N Y None
96 NA FUNB HCPI Y N Y None
97 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 BOA N Y Y None
98 NA BOA Y N Y Springing
99 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
101 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
103 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y Hard
105 NA FUNB HCPI Y N Y None
106 NA FUNB Y N Y None
107 NA FUNB HCPI Y N Y None
108 NA FUNB Y N Y None
109 NA BOA Y N Y None
110 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
112 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
114 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
116 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
118 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
120 NA BOA Y N Y None
121 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Homewood Y N Y None
123 NA FUNB HCPI Y N Y None
124 NA FUNB Y N Y None
125 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
127 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
129 NA FUNB Homewood Y N Y None
130 NA BOA Y N Y None
131 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
133 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
135 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
137 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
139 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
141 NA BOA Y N Y None
142 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
144 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
146 NA BOA Y N Y None
147 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
149 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
151 NA BOA Y N Y None
152 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
154 NA BOA Y N Y Springing
155 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
156 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
158 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y Springing
160 NA FUNB Y N Y None
161 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
163 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
165 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
166 NA FUNB Y N Y Hard
167 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
169 NA FUNB Y N Y None
170 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
172 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ BOA Y N Y None
174 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
176 NA FUNB Y N Y None
177 NA BOA Y N Y None
178 ▇▇ ▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ 10/1/10-9/30/12=9.327;10/1/12-MD=10.827 FUNB N Y Y Springing
180 ▇▇ ▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇
▇▇▇ ▇▇ FUNB Y N Y None
182 NA BOA Y N Y None
(cont'd)
INITIAL
ANNUAL DEPOSIT
MONTHLY MONTHLY DEPOSIT TO TO CAPITAL
LOAN TAX INSURANCE REPLACEMENT IMPROVEMENTS
NUMBER ESCROW ESCROW RESERVE RESERVE INITIAL TI/LC ESCROW
------ ------- --------- ----------- ------------ --------------------
1 Y Y 33,326.52 462,500.00 250,236.00
2 Y Y 47,422.56 147,625.00
3 Y Y 22,371.96
4 N N
5 Y Y 738,415.44 24,937.50
5.1
5.2
5.3
5.4
6 Y Y 677,807.52
7 Y N 69,240.00 6,666.67
8 Y Y 1,078,691.04 268,250.00
8.1
8.2
8.3
8.4
9 Y N 22,927.56
10 Y Y
11 Y Y 56,901.96
12 Y Y 17,508.72 96,250.00 1,925,487.20
13 Y Y 143,012.50
14 Y Y 120,960.00 7,125.00
15 Y Y 65,000.04
16 Y Y 5,772.00
17 Y N 29,531.04
18 Y Y 95,199.96 12,500.00
19 Y Y 5,265.00
20 Y Y 84,999.96 47,620.00
21 Y Y 70,356.00
22 Y Y 11,111.04
23 N N 50,135.00
24 N N 264,896.00
25 Y Y 79,185.96 1,229,860.00
26 Y Y 98,058.00 2,257,077.00
27 N N 86,336.25 200,000.00
28 Y N 44,745.00 16,125.00
29 N N 302,100.00
30 Y Y 38,507.88 29,375.00 414,720.00
31 Y N 63,855.00 87,500.00
32 Y N 39,750.00 31,250.00
33 Y Y 111,999.96 338,000.00
34 Y N 66,240.00 46,550.00
35 Y Y 53,000.04 2,250.00
36 Y Y 112,437.00 94,437.50
37 Y Y 10,927.68
▇▇ ▇ ▇
▇▇ Y Y 26,201.04 5,000.00 150,000.00
40 Y Y 54,399.96
41 Y Y 66,000.00 5,600.00
42 Y Y 13,669.92
43 Y Y 27,046.68 104,000.00
44 Y Y 239,964.00
45 N Y
46 Y Y 14,109.00
47 Y N 6,999.96 7,188.00
48 Y Y 11,499.96
49 Y Y 19,044.96 625.00
50 Y Y 7,095.96
51 Y Y 16,020.96 1,000.00
52 Y Y 19,092.00 16,450.00
53 N N 10,067.04
54 Y Y 44,799.96 2,100.00
55 N N 22,750.00
56 Y Y 19,364.04 105,500.00
57 Y N 63,801.00 43,000.00
58 Y Y 6,437.50
59 Y Y 21,500.04
60 Y Y 27,126.00
61 Y Y 4,998.12 50,000.00
62 Y Y 29,841.00
63 Y Y 12,848.04 4,168.75
64 Y N 42,784.20 26,148.00
65 Y Y 238,837.50
66 Y N 60,048.00 32,250.00
67 Y Y 33,528.00 9,825.00 300,000.00
68 Y Y 24,929.04 31,250.00
69 Y N 38,496.00 7,375.00
70 Y Y 6,495.00
71 Y Y 7,014.00 93,750.00
72 Y Y 39,096.00 4,375.00
73 Y Y 14,848.20 9,593.75
74 Y Y 25,770.00
75 Y Y 32,000.04
76 Y N 5,250.00
77 N Y
78 Y Y 4,992.00
▇▇ ▇ ▇
▇▇ Y N 19,203.96
81 Y Y 43,820.04 125,468.75
82 N Y
83 Y N 27,021.60 96,575.00
84 Y Y 57,300.00 42,156.25
85 Y Y 29,600.04
86 Y Y 32,130.96 2,875.00
87 N N 7,098.00
88 Y Y 22,962.96
89 Y Y 35,360.04 12,437.50
90 Y Y 32,250.00
91 Y Y 1,886.40
92 Y Y 12,744.00 20,000.00
93 Y Y 73,599.96 42,438.00
94 Y Y 43,599.96 46,782.50
95 Y Y 8,465.04
96 N N 29,336.00
97 Y N 26,004.00 166,100.00
98 Y Y 2,696.04 1,500.00
99 Y Y 3,971.04
100 Y N 31,436.04 1,125.00
▇▇▇ ▇ ▇
▇▇▇ Y Y 4,935.00
103 Y Y 2,970.00
104 Y Y 11,067.60 10,237.50
▇▇▇ ▇ ▇
▇▇▇ Y Y 2,004.24 100,000.00
▇▇▇ ▇ ▇
▇▇▇ ▇ ▇ 18,655.20 2,562.50
109 Y Y 4,293.96
110 Y Y 24,000.00
111 Y Y 6,210.00
▇▇▇ ▇ ▇
▇▇▇ Y Y 4,249.92
114 Y Y 60,000.00
115 Y Y 35,400.00 27,562.50
116 Y Y 8,568.00 12,500.00
117 Y Y 30,956.04 130,600.00
118 Y Y 18,788.04 4,030.00
119 Y Y 3,985.44
▇▇▇ ▇ ▇
▇▇▇ ▇ ▇
122 N Y
▇▇▇ ▇ ▇
▇▇▇ Y Y 2,863.80
125 Y Y 19,496.52 9,000.00
126 Y Y 50,875.00
127 Y Y 3,960.00
128 Y Y 6,697.56 85,000.00
▇▇▇ ▇ ▇
▇▇▇ ▇ ▇
131 Y Y 20,055.84
132 Y Y 3,946.56
133 Y Y 20,000.04 4,750.00
134 Y Y 3,271.56 10,218.75
▇▇▇ ▇ ▇ 644.04
136 Y Y 2,996.04 45,000.00
▇▇▇ ▇ ▇ 672.00
138 Y Y 4,350.48 1,312.50
139 Y Y 4,710.00
140 Y Y 5,271.36
141 Y Y 2,354.04
142 Y Y
▇▇▇ ▇ ▇
▇▇▇ Y Y 6,495.96
145 Y Y 37,100.04 48,686.25
146 Y Y 3,069.96
147 Y Y 6,999.96
▇▇▇ ▇ ▇ 1,091.04
▇▇▇ ▇ ▇
▇▇▇ Y Y 5,562.72 10,249.00
▇▇▇ ▇ ▇
▇▇▇ Y Y 4,800.00 27,125.00
153 Y Y 12,320.04 37,500.00 157,000.00
154 Y Y 41,184.00 4,375.00
155 Y N 17,495.76 10,157.00
156 Y Y 4,202.04 1,687.50
157 Y Y 12,233.04 206,854.00 16,305.00
158 Y Y 8,396.04 1,625.00
159 Y Y 20,568.96 20,250.00
160 Y Y 10,834.68 1,250.00
▇▇▇ ▇ ▇
▇▇▇ Y Y 20,000.00
163 Y Y 1,432.56
164 Y Y 3,396.36 39,250.00
165 Y N 10,008.00 45,037.00
166 Y Y 18,189.00 69,612.50
167 Y Y 12,900.00 4,730.00
168 Y N 1,919.88
169 Y Y 3,235.44 5,875.00
170 Y Y 3,600.00 250.00
171 Y Y 2,448.00 42,000.00
172 Y Y 17,499.96 11,937.50
173 Y Y 2,400.00
174 Y Y 825.00
175 Y Y 18,999.96 25,858.00
176 Y Y 3,399.96
177 Y Y 2,838.96 475.00
178 Y Y 3,421.08 87,134.00
179 Y N 7,749.96 63,525.00
180 Y Y 4,723.20 4,960.00
181 Y Y 3,536.64 1,573.75
182 N N
EXHIBIT C-1
Schedule of Exceptions to Mortgage File Delivery
First Union Commercial Mortgage Securities Inc.
Commercial Mortgage Pass Through Certificates Series 2001-C1
-------------------------------------------------------------------------------
Loan ID Originator Property Name Document Ex Code Exception Comments
Description
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
First Union Commercial Mortgage Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
First Union National Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - URP4, NC 1075
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: First Union National Bank-Bank of America, N.A. Commercial
Mortgage Trust Commercial Mortgage Pass-Through Certificates,
Series 2001-C1
Re: First Union National Bank - Bank of America, N.A.
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2001-C1
Ladies and Gentlemen:
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee, hereby certifies to the above
referenced parties that, with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (i), (ii), (iv)(a), (v)
and (vii), and to the extent provided in the related Mortgage File and actually
known by a Responsible Officer of the Trustee to be required, clauses (iii),
(iv)(b), (iv)(c), (vi), (viii), and (ix), and (xi) of the definition of
"Mortgage File" are in its possession, (ii) all documents delivered or caused to
be delivered by the applicable Mortgage Loan Originator constituting the related
Mortgage File have been reviewed by it and appear regular on their face and
appear to relate to such Mortgage Loan, and (iii) based on such examination and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule for such Mortgage Loan with respect to the items specified in
clauses (v) and (vi)(c) of the definition of "Mortgage Loan Schedule" is
correct.
None of the Trustee, the Master Servicer, the Special Servicer or any Custodian
is under any duty or obligation to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, enforceable, in recordable form, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them under the Pooling and Servicing Agreement.
Respectfully,
_______________________________________
Name:__________________________________
Title: ________________________________
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Services (CMBS)-Mortgage Document Custody
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of March
1, 2001 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer and as Special Servicer, and you, as Trustee, the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by you with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
____________________________________
____________________________________
____________________________________
Attn: ______________________________
Phone:______________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be credited
to the Certificate Account pursuant to the Pooling and Servicing
Agreement have been or will be so credited.
_____ 2. Other. (Describe)
______________________________________________________________
______________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
FIRST UNION NATIONAL BANK,
as Master Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 5544
Attn: Corporate Trust Services (CMBS)-Mortgage Document Custody
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of March
1, 2001 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer and as Special Servicer, and you, as Trustee, the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by you with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
____________________________________
____________________________________
____________________________________
Attn: ______________________________
Phone:______________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. The Mortgage Loan is being foreclosed.
_____ 2. Other. (Describe)
______________________________________________________________
______________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
FIRST UNION NATIONAL BANK
as Special Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Cash Flow" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
replacement reserves and an allowance for vacancies and credit losses. Net Cash
Flow does not reflect interest expenses and non-cash items such as depreciation
and amortization, and generally does not reflect capital expenditures, but does
reflect reserves for replacements and an allowance for vacancies and credit
losses.
In determining vacancy for the "revenue" component of Net Cash Flow
for each Rental Property, the Special Servicer shall rely on the most recent
rent roll supplied by the related borrower and where the actual vacancy shown
thereon and the market vacancy is less than 1%, the Special Servicer shall
assume a 1% vacancy in determining revenue from rents, except that in the case
of certain anchored shopping centers, space occupied by anchor or single tenants
or other large tenants shall be disregarded in performing the vacancy adjustment
due to the length of the related leases or creditworthiness of such tenants, in
accordance with the respective Mortgage Loan Seller's underwriting standards.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, and (b) historical vacancy at comparable properties in the
same market as the related Mortgaged Property. In determining rental revenue for
multifamily, self-storage and mobile home park properties, the Special Servicer
shall either review rental revenue shown on the certified rolling 12-month
operating statements or annualized the rental revenue and reimbursement of
expenses shown on rent rolls or operating statements with respect to the prior
one to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent certified rent
roll, after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average occupancy not to exceed 75.0% and daily rates achieved during
the prior two to three year annual reporting period. In the case of residential
health care facilities, receipts shall be based on historical occupancy levels,
historical operating revenues and the then current occupancy rates. Occupancy
rates for private health care facilities shall be within current market ranges
and vacancy levels shall be at a minimum of 1%. In general, any non-recurring
items and non-property related revenue shall be eliminated from the calculation
except in the case of residential health care facilities.
In determining the "expense" component of Net Cash Flow for each
Mortgaged Property, the Special Servicer shall rely on the rolling 12-month
operating statements and/or full-year or year-to-date financial statements
supplied by the related borrower, except that (a) if tax or insurance expense
information more current than that reflected in the financial statements is
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.1% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be assumed and, with respect to single tenant properties, where fees as low as
3% of effective gross receipts shall be assumed), (c) assumptions shall be made
with respect to reserves for leasing commission, tenant improvement expenses and
capital expenditures and (d) expenses shall be assumed to include annual
replacement reserves. In addition, in some instances, the Special Servicer may
recharacterize as capital expenditures those items reported by borrowers as
operating expenses (thus increasing "net cash flow") where determined
appropriate.
EXHIBIT F
[RESERVED]
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ Fargo Center
Sixth and Marquette-MAC#N9303-121
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Services (CMBS)
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2001-C1 (the "Certificates")
------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of March 30, 2001 (the "Closing Date")
of $_____________ evidencing a __% percentage interest in the Class to which it
belongs. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2001,
among First Union Commercial Mortgage Securities, Inc., as depositor, First
Union National Bank, as master servicer and as special servicer and ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as trustee. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accepted a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Certificate a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of any Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
_______________________________________
(Transferor)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ Fargo Center
Sixth and Marquette-MAC#N9303-121
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Services (CMBS)
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2001-C1 (the "Certificates")
------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of March 30, 2001 (the "Closing Date")
of $_____________ evidencing a __% percentage interest in the Class to which it
belongs. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2001,
among First Union Commercial Mortgage Securities, Inc., as depositor, First
Union National Bank, as master servicer and as special servicer and ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., as trustee. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act") and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. In the case of a Class A-1, Class A-2, Class A-2F, Class B, Class
C, Class D, Class E, Class F, Class G, Class H or Class IO Certificates,
the Transferee either (A) is not an "employee benefit plan" subject to
ERISA or a "plan" described by Section 4975(e)(1) of the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan") or (B) (1) qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D under the
Securities Act and at the time of such transfer, the Certificates are
rated in one of the top four rating categories by at least one Rating
Agency, (2) is an insurance company general account that is eligible for,
and satisfies all of the requirements of, Section III of Department of
Labor Prohibited Transaction Class Exemption 95-60, or (3) has provided a
certification of facts and Opinion of Counsel (which Opinion of Counsel
shall not be an expense of the Trustee, Trust or Certificate Registrar) on
which the Trustee may conclusively rely, that such transfer will not
result in the imposition of an excise tax under Section 4975 of the Code.
In the case of a Class J, Class K, Class L, Class M, Class N, Class
O, Class P or Class Q Certificate, the Transferee either (A) is not an
"employee benefit plan" subject to Title I of ERISA or a "plan" described
by Section 4975(e)(1) of the Code or any other retirement plan or other
employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the
Code, or any entity deemed to hold plan assets of the foregoing by reason
of a plan's investment in such entity (each, a "Plan") or (B) (1) is an
insurance company general account which is eligible for, and satisfies all
of the requirements for, exemptive relief under Sections I and III of
Department of Labor Prohibited Transaction Class Exemption 95-60 ("PTE
95-60") or (2) has provided a certification of facts and Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee,
Trust or Certificate Registrar) on which the Trustee may conclusively
rely, that such transfer will not result in the imposition of an excise
tax under Section 4975 of the Code.
3. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
4. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificate will bear legends substantially to the
following effect:
[In the case of the Unregistered Certificates]: THE CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class A-1, Class A-2, Class A-2F, Class B, Class C, Class
D, Class E, Class F, Class G, Class H or Class IO Certificates]: NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(e)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN (1) QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN
RULE 501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP FOUR RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, (2) THE PURCHASER IS AN
INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL
OF THE REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, OR (3) CAN PROVIDE A CERTIFICATION OF
FACTS AND OPINION OF COUNSEL (WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE TRUSTEE, TRUST OR CERTIFICATE REGISTRAR) ON WHICH THE
TRUSTEE MAY CONCLUSIVELY RELY, THAT SUCH TRANSFER WILL NOT RESULT IN THE
IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE. EACH PERSON
WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Class J, Class K, Class L, Class M, Class N, Class O,
Class P or Class Q Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A "PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY OTHER RETIREMENT
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA
AND THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY
REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS
AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES
ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION SECTIONS I AND
III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED
TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT
WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate
under the Securities Act, would render the disposition of any Certificate
a violation of Section 5 of the Securities Act or any state securities law
or would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
ANNEX 1 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2.____The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$____________ / _____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) [Transferee must own
and/or invest on a discretionary basis at least $100,000,000 in securities
unless Transferee is a dealer, and, in that case, Transferee must own and/or
invest on, a discretionary basis at least $10,000,000 in securities.] and (ii)
the Transferee satisfies the criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), business
trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended.
____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
________ ________ Will the Transferee be purchasing
Yes No the Transferred Certificate only for
the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis $ in
securities (other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
________ ________ Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ Fargo Center
Sixth and Marquette-MAC#N9303-121
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Services (CMBS)
Re: First Union National Bank--Bank of America, N.A.
Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2001-C1 (the "Certificates")
------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of March 30, 2001 (the "Closing Date")
of $_____________ evidencing a __% percentage interest in the Class to which it
belongs. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2001,
among First Union Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), First Union National Bank, as master servicer and as special
servicer and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee. All terms used herein
and not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the Trustee
or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) the Certificates may not be resold or transferred unless
they are (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either (A)
certifications from both the transferor and the transferee (substantially in the
forms attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with
copies of the certification(s) from the Transferor and/or Transferee setting
forth the facts surrounding the transfer upon which such opinion is based. Any
holder of a Certificate desiring to effect such a transfer shall, and upon
acquisition of such Certificate shall be deemed to have agreed to, indemnify the
Trustee, the Certificate Registrar and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed, and that the Transferred Certificate
will bear legends substantially to the following effect:
[In the case of Unregistered Certificates]: THE CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class A-1, Class A-2, Class A-2F, Class B, Class C, Class
D, Class E, Class F, Class G, Class H or Class IO Certificates]: NO TRANSFER OF
THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT
PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE CODE,
OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN (1) QUALIFIES AS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN
ONE OF THE TOP FOUR RATING CATEGORIES BY AT LEAST ONE RATING AGENCY, (2) THE
PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (3) CAN PROVIDE A CERTIFICATION
OF FACTS AND OPINION OF COUNSEL (WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE TRUSTEE, TRUST OR CERTIFICATE REGISTRAR) ON WHICH THE TRUSTEE MAY
CONCLUSIVELY RELY, THAT SUCH TRANSFER WILL NOT RESULT IN THE IMPOSITION OF AN
EXCISE TAX UNDER SECTION 4975 OF THE CODE. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
[In the case of Class J, Class K, Class L, Class M, Class N, Class O,
Class P or Class Q Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR
A "PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH
IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF
UNDER SECTION SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Certificates and distributions thereon, (c) the Pooling
and Servicing Agreement, and (d) all related matters, that it has requested.
6. The Transferee has been furnished a copy of the Private Placement
Memorandum dated March 22, 2001 and has read such Private Placement Memorandum.
7. The Transferee is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Certificates; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT H
FORM OF PROSPECTIVE TRANSFEREE CERTIFICATE
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ Fargo Center Sixth and Marquette-MAC#N9303-121
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Services (CMBS)
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2001-C1 (the "Certificates")
------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") having an initial [principal balance] [notional amount] as of
March 30, 2001 (the "Closing Date") of $_____________ evidencing a __% interest
in the Classes to which they belong. The Certificates were issued pursuant to a
Pooling and Servicing Agreement, dated as of March 1, 2001 (the "Pooling and
Servicing Agreement"), among First Union Commercial Mortgage Securities, Inc.,
as depositor, First Union National Bank, as master servicer and as special
servicer and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you that:
In the case of a Class A-1, Class A-2, Class A-2F, Class B, Class C,
Class D, Class E, Class F, Class G, Class H or Class IO Certificate, the
Transferee either (A) is not an "employee benefit plan" subject to ERISA or a
"plan" described by Section 4975(e)(1) of the Code, or any entity deemed to hold
plan assets of the foregoing by reason of a plan's investment in such entity
(each, a "Plan") or (B) (1) qualifies as an accredited investor as defined in
Rule 501(a)(1) of Regulation D under the Securities Act and at the time of such
transfer, the Certificates are rated in one of the top three rating categories
by at least one Rating Agency, (2) is an insurance company general account that
is eligible for, and satisfies all of the requirements of, Section III of
Department of Labor Prohibited Transaction Class Exemption 95-60, or (3) has
provided a certification of facts and Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Trustee, Trust or Certificate Registrar)
on which the Trustee may conclusively rely, that such transfer will not result
in the imposition of an excise tax under Section 4975 of the Code.
In the case of a Class J, Class K, Class L, Class M, Class N, Class
O, Class P or Class Q Certificate, the Transferee either (A) is not an "employee
benefit plan" subject to Title I of ERISA or a "plan" described by Section
4975(e)(1) of the Code, or any other retirement plan or other employee benefit
plan or arrangement subject to any federal, state or local law materially
similar to the foregoing provisions of ERISA and the Code, or any entity deemed
to hold plan assets of the foregoing by reason of a plan's investment in such
entity (each, a "Plan") or (B) (1) is an insurance company general account which
is eligible for, and satisfies all of the requirements for, exemptive relief
under Sections I and III of Department of Labor Prohibited Transaction Class
Exemption 95-60 ("PTE 95-60") or (2) has provided a certification of facts and
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee, Trust or Certificate Registrar) on which the Trustee may conclusively
rely, that such transfer will not result in the imposition of an excise tax
under Section 4975 of the Code.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
_______________________________________
[Name of Transferee]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(2)
STATE OF NEW YORK_ )
) ss.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, and represents
and warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"),
a corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the First Union
Commercial Mortgage Securities, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-C1, Class [R-I, R-II] evidencing a ___%
Percentage Interest in the Class to which its belongs (the "Class [R-I,
R-II] Certificates"). Capitalized terms used but not defined herein have
the meanings assigned to such terms in the Pooling and Servicing Agreement
dated as of March 1, 2001, among First Union Commercial Mortgage
Securities, Inc., as Depositor, First Union National Bank as Master
Servicer and as Special Servicer and ▇▇▇▇▇ Fargo Bank Minnesota, N.A..
2. That the Owner (i) is and will be a "Permitted Transferee" as of
________, _______ and (ii) is acquiring the Class [R-I, R-II] Certificates
for its own account or for the account of another Owner from which it has
received an affidavit in substantially the same form as this affidavit. A
"Permitted Transferee" is any person other than a "disqualified
organization" or a Non-United States Person. For this purpose, a
"disqualified organization" means any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except of the FHLMC, a majority of its
board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other
than certain farmers' cooperatives described in Section 521 of the
Internal Revenue Code of 1986, as amended (the "Code")) which is exempt
from the tax imposed by Chapter 1 of the Code (unless such organization is
subject to the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code and (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Class [R-I, R-II] Certificate by
such Person may cause the Trust Fund or any Person having an Ownership
Interest in any Class of Certificates, other than such Person, to incur a
liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a
Class [R-I, R-II] Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth
in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or
organized in, or under the laws of the United States, any State thereof or
the District of Columbia unless in the case of a partnership, Treasury
Regulations are adopted that provide otherwise, or an estate whose income
is subject to federal tax income regardless of its source, or a trust if a
court within the United States is able to exercise primary supervision
over the administration of the trust and one or more United States Persons
have the authority to control all substantial decisions of the trust, all
within the meaning of Section 7701(a)(30) of the Code.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I, R-II] Certificates to disqualified
organizations under the Code that applies to all transfers of the Class
[R-I, R-II] Certificates after March 31, 1988; (ii) that such tax would be
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a disqualified organization
Transferee, on the agent; (iii) that the person otherwise liable for the
tax shall be relieved of liability for the tax if the transferee furnishes
to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have
actual knowledge that the affidavit is false; and (iv) that the Class
[R-I, R-II] Certificates may be "noneconomic residual interests" within
the meaning of Treasury regulation section 1.860E-1(c)(2) and that the
transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede
the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I, R-II] Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is
the record holder of an interest in such entity. For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.
5. That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class [R-I, R-II] Certificate unless the
transferee, or the transferee's agent, delivers to the Trustee, among
other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I, R-II]
Certificates will only be owned, directly or indirectly, by Permitted
Transferees.
7. That the Owner's taxpayer identification number is
8. That the Owner has reviewed the restrictions set forth on the
face of the Class [R-I, R-II] Certificates and the provisions of Section
5.02 of the Pooling and Servicing Agreement under which the Class [R-I,
R-II] Certificates were issued (and, in particular, the Owner is aware
that such Section authorizes the Trustee to deliver payments to a person
other than the Owner and negotiate a mandatory sale by the Trustee in the
event that the Owner holds such Certificate in violation of Section 5.02);
and that the Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class
[R-I, R-II] Certificates in order to impede the assessment or collection
of any tax.
10. That the Owner has historically paid its debts as they have come
due, intends to continue to pay its debts as they come due in the future,
and anticipates that it will, so long as it holds any of the Class [R-I,
R-II] Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class [R-I, R-II] Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds
any of the Class [R-I, R-II] Certificates.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the Person from whom it acquired the
Class [R-I, R-II] Certificates that the Owner intends to pay taxes
associated with holding the Class [R-I, R-II] Certificates as they become
due, fully understanding that it may incur tax liabilities in excess of
any cash flows generated by the Class [R-I, R-II] Certificates.
13. That the Owner is not acquiring the Class [R-I, R-II]
Certificates with the intent to transfer any of the Class [R-I, R-II]
Certificates to any person or entity that will not have sufficient assets
to pay any taxes owed by the holder of such Class [R-I, R-II]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II] Certificates remain
outstanding.
14. That the Owner will, in connection with any transfer that it
makes of the Class [R-I, R-II] Certificates, obtain from its transferee
the representations required by Section 5.02(d) of the Pooling and
Servicing Agreement under which the Class [R-I, R-II] Certificates were
issued and will not consummate any such transfer if it knows, or knows
facts that should lead it to believe, that any such representations are
false.
15. That the Owner will, in connection with any transfer that it
makes of any Class [R-I, R-II] Certificate, deliver to the Certificate
Registrar an affidavit, which represents and warrants that it is not
transferring such Class [R-I, R-II] Certificate to impede the assessment
or collection of any tax and that it has no actual knowledge that the
proposed transferee: (i) has insufficient assets to pay any taxes owed by
such transferee as holder of such Class [R-I, R-II] Certificate; (ii) may
become insolvent or subject to a bankruptcy proceeding, for so long as the
Class [R-I, R-II] Certificates remain outstanding; and (iii) is not a
"Permitted Transferee".
16. The Owner has computed any consideration paid to it to acquire
the Class [R][LR] 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.]
[The Owner has computed any consideration paid to it to acquire the
Class [R][LR] Certificate in accordance with the 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 Owner
regularly borrows, in the ordinary course of its trade or business,
substantial funds from unrelated third parties. The Owner has provided all
information necessary to demonstrate to the transferor that it regularly
borrows at such rate.]
[The transfer of the Class [R][LR] Certificate complies with Section
6 of Revenue Procedure 2001-12 (the "Revenue Procedure"), 2001-3 I.R.B.
335 (January 16, 2001) (or comparable provisions of applicable final U.S.
Treasury Regulations) and, accordingly,
(i) the Owner is an "eligible corporation," as defined in Section
860L(a)(2) of the Code, as to which income from Class [R][LR]
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Owner's
two fiscal years preceding the year of the transfer, the Owner
had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Owner within the
meaning of Section 860L(g) of the Code) in excess of the $100
million and net assets in excess of $10 million;
(iii) the Owner will transfer the Class [R][LR] 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 Owner determined the consideration paid to it to acquire
the Class [R][LR] 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 Owner) that it has determined in good faith.]
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, by its [Title of Officer] and Authorized Signatory,
attested by its Assistant Secretary, this ____ day of _____, ___.
[NAME OF OWNER]
By:____________________________________
[Name of Officer]
[Title of Officer]
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be [Title of Officer], and acknowledged to me that he executed
the same as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____, _____.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My Commission expires the
____ day of ___________, ____.
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(4)
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ Fargo Center
Sixth and Marquette-MAC#N9303-121
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Services (CMBS)
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates,
Series 2001-C1, Class [R-I, R-II], evidencing a ____%
percentage interest in the Class to which they belong
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________ (the "Transferor") to ______________________ (the "Transferee") of the
captioned Class [R-I, R-II] Certificates (the "Class [R-I, R-II] Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of March 1, 2001, among First Union
Commercial Mortgage Securities, Inc., as depositor, First Union National Bank,
as master servicer and as special servicer, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Class [R-I, R-II] Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit I-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor at the time of this transfer either (i) has
conducted a reasonable investigation of the financial condition of the
Transferee as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor
has determined that the Transferee has historically paid its debts as they
became due and has found no significant evidence to indicate that the
Transferee will not continue to pay its debts as they become due in the
future.
4. The Transferor understands that the transfer of the Class [R-I,
R-II] Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the tests described above in
Paragraph 3(i) or 3(ii) have been met as to any transfer.
Very truly yours,
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement dated as of March 1, 2001 relating to First
Union National Bank - Bank of America, N.A. Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2001-C1 (the "Agreement").
Any term with initial capital letters not otherwise defined in this notice has
the meaning given such term in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________ as Special Servicer will
become final if certain conditions are met and on the date you will deliver to
▇▇▇▇▇ Fargo Bank Minnesota, N.A., the trustee under the Agreement (the
"Trustee"), a written confirmation stating that the appointment of the person
designated to become the Special Servicer will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
By:____________________________________
Title:______________________________
Receipt and acknowledged:
Fitch, Inc.
▇▇▇▇▇'▇ Investors Service, Inc.
By: __________________________ By: __________________________
Title: ________________________ Title: ________________________
Date: ________________________ Date: ________________________
EXHIBIT J-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: First Union National Bank, Series 2001-C1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement
dated as of March 1, 2001 relating to First Union National Bank - Bank of
America, N.A. Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C1 (the "Agreement"), the undersigned hereby agrees
with all the other parties to the Agreement that the undersigned shall serve as
Special Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges that, as of the date hereof, it is and shall be a party to the
Agreement and bound thereby to the full extent indicated therein in the capacity
of Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 3.23(b) of the Agreement as
if it were the Special Servicer thereunder.
_______________________________________
By:____________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT K
[RESERVED]
EXHIBIT L
[RESERVED]
EXHIBIT M
FORM OF CMSA PROPERTY FILE REPORT
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
----------------------------------- -------------------------------------------------------------------------------------------
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
Collateral Item In A ▇▇▇▇ ▇▇, ▇▇
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Propectus S4, L4
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 Grouping 6 AN Text All Loans With The Same Value Are Crossed, For
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. S75
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 Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
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 at
Contribution 19 Numeric 0.75 Issuer to allocate loan % attributable to property
for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by
Issuer or Underwriter, use Underwritting NOI or
NCF to calculate
Current Allocated Ending Scheduled
Loan Amount 21 Numeric 5900900.00 Calculation based on Current Allocated Percentage
and Current Ending ScL7duled Principal Balance
(L7) for associated loan. L7
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 Tax & Insurance Escrows). An amount
should be printed if the value in Setup File
field 77 is "Y" S77
Most Recent Appraisal Date 24 AN YYYYMMDD L74
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
Date Asset Expected to Be Resolved
or Foreclosed 26 AN YYYYMMDD Could be different dates for different properties.
If in Foreclosure - Expected Date of Foreclosure
and if REO - Expected Sale Date. L79
Foreclosure Date 27 AN YYYYMMDD L42
REO Date 28 AN YYYYMMDD L43
Most Recent Physical Occupancy 29 Numeric 0.75 ▇▇▇
▇▇▇▇▇▇▇▇▇ 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, ▇▇, ▇▇ ▇▇▇
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, ▇▇, ▇▇ ▇▇▇
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, ▇▇, ▇▇ ▇▇▇
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, ▇▇, ▇▇ ▇▇▇
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
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 Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example : "12"
Contribution Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S70
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S71
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S65
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 Contribution 51 Numeric 0.9 S69
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD L58
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00 L53
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated
amount for each property L55
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt service
amount L56
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9 L57
Second Preceding FY Financial As of Date 60 AN YYYYMMDD L65
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00 L59
Second Preceding FY Operating Expenses 62 Numeric 1000000.00 L60
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated
amount for each property L62
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3 Uses the property NOI and the allocated debt service
amount L63
Second Preceding FY Physical Occupancy 66 Numeric 0.9 L64
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
amount for each property L69
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt
service amount L70
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most Recent information
either YTD or trailng 12 months L72
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most Recent information
either YTD or trailing 12 months L73
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match the
prospectus if available. S83
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate.
Should match the prospectus if available. S84
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to
Financial As of Date P53. L92
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date P53. L93
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow related
to Financial As of Date P60. L94
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage
Ratio using Net Cash Flow related to Financial
As of Date P60. L95
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As
of Date P74. L96
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of Date P74. L97
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial period.
See NOI/NCF Indicator Legend. L90
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
----------------------------------- ------------------------------------------------------------------------------------
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
----------------------------------- ------------------------------------------------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
RT Retail 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 N
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
CSMA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
as of _______________________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI or NCF
------------------------------------------------------------------------------
P4 P9 P10 P52 P21 L8 P57
-------- ------- ------ ---------- ---------- ------- -----------
Last Current Allocated
Property Allocated Paid Annual
Property Inspection Loan Thru Debt
ID City State Date Amount Date Service
-------- ------- ------ ---------- ---------- ------- -----------
yyyymmdd
List all properties currently in deal with or without information laargest
to smallest loan
This report should reflect the information provided in the CMSA Property
File and CMSA Loan Periodic Update File.
Total $ $
------------------------------------------------------------------------------
Operating Information Reflected As NOI____ or NCF______
------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ OR P77
BASE YEAR ORIGINAL UNDERWRITING
INFORMATION
------------ ------- -------- ---------------------- -----------
Financial
Info as of % Total $ (1)
Date OCC Revenue NOI/NCF DSCR
------------ ------- -------- ---------------------- -----------
yyyymmdd
List all properties currently in deal with or without information laargest
to smallest loan
This report should reflect the information provided in the CMSA Property
File and CMSA Loan Periodic Update File.
Total ** WA $ $ WA
------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ OR P81
------------ ------- -------- ----------------- -----------
2ND PRECEDING ANNUAL OPERATING
INFORMATION
AS OF _____ NORMALIZED
------------ ------- -------- ----------------- -----------
Financial
Info as of % Total $ (1)
Date OCC Revenue NOI/NCF DSCR
------------ ------- -------- ----------------- -----------
yyyymmdd
Total WA $ $ WA
------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ OR P79
------------ ------- -------- ----------------- -----------
PRECEDING ANNUAL OPERATING
INFORMATION
AS OF______ NORMALIZED
------------ ------- -------- ----------------- -----------
Financial
Info as of % Total $ (1)
Date OCC Revenue NOI/NCF DSCR
------------ ------- -------- ----------------- -----------
yyyymmdd
Total WA $ $ WA
------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ OR P83 (2)
---------- ---------- --------- -------- --------- ----------- ----------- ------------------------
MOST RECENT FINANCIAL NET CHANGE
INFORMATION
*NORMALIZED OR ACTUAL PRECEDING & BASIS
---------- ---------- --------- -------- --------- ----------- ----------- ------------------------
%
FS Start FS End Occ As of % Total $ (1) % Total (1)
Date Date Date Occ Revenue NOI/NCF DSCR Occ Revenue DSCR
---------- ---------- --------- -------- --------- ----------- ----------- ------------------------
yyyymmdd yyyymmdd yyyymmdd
Total WA $ $ WA WA $ WA
------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement Analysis Report and is normally calculated using NOI or NCF / Debt Service times
the allocated loan percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant and applicable.
EXHIBIT O
FORM OF REO STATUS REPORT
CSMA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
as of _______________________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI or NCF
------------------------------------------------------------------------------------------------------------------------
P16
or
▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ L39
---------- ------------ --------- -------- ------ ------- ------ ----------- ----------- ------------
(a) (b) (c)
---------- ------------ --------- -------- ------- ------- ------ ------------ ----------- -----------
ALLOCATED
ENDING OTHER
SQ FT PAID SCHEDULED TOTAL P&I Expense
PROPERTY PROPERTY PROPERTY CITY STATE OR THRU LOAN ADVANCES ADVANCE
ID NAME TYPE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING
---------- ------------ --------- -------- ------- ------- ------ ------------ ----------- -------------
----------------------------------------------------------------------------------------------------------------------------------
P58 or
P72/P79
L39 L38 L25 L11 P53 or P74 or P83 P24 P25
---------- ------------ ----------- -------- ------ ---------- ---------- ----------- ----------- ----------
(c) (d) (e)=a+b+c+d (f) (b)
---------- ------------ ----------- -------- ------- ---------- ---------- ------------ ----------- -----------
APPRAISAL
BPO OR
OTHER INTERNAL APPRAISAL
EXPENSE TOTAL T&I CURRENT LTM VALUE BPO OR
ADVANCE ADVANCE TOTAL MONTHLY MATURITY NOI/NCF LTM DSCR VALUATION SOURCE INTERNAL
OUTSTANDING OUTSTANDING EXPOSURE P&I DATE DATE (NOI/NCF) DATE (1) VALUE
----------- ------------ ----------- -------- ------- ---------- ---------- ------------ ----------- -----------
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
--------------- ------------ ----------- ------------- ----------- ----------------
(h)=(.90*g)-e
--------------- ------------ ----------- ------------- ----------- -----------------
DATE
TOTAL ASSET
LOSS USING APPRAISAL REO EXPECTED
90% APPR. OR REDUCTION TRANSFER ACQUISITION TO BE
BPO (F) REALIZED DATE DATE RESOLVED COMMENTS
--------------- ------------ ----------- ------------- ----------- -----------------
REO' s data reflected at the property level for relationships with more than one (1) property should use the Allocated Ending
Scheduled 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.
EXHIBIT P
FORM OF WATCH LIST
CSMA INVESTOR REPORTING 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
PROSPECTUS PROPERTY PROPERTY ENDING SCHEDULED PAID MATURITY PRECEDING FISCAL YR. MOST RECENT COMMENT/ACTION
LOAN ID NAME TYPE CITY STATE LOAN BALANCE THRU DATE DATE DSCR NOI/NCF DSCR NOI/NCF 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.
WATCH LIST SELECTION CRITERIA SHOULD BE FOOTNOTED ON THE REPORT. THE CRITERIA
MAY BE DICTATED AS PER THE PSA OR THE SERVICER'S INTERNAL POLICY.
Total: $
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
CSMA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF _______________________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI or NCF
S4 S55 S61 S57 S58 S62 OR S63 L8 L7 L37 L39
(a) (b) (c)
------------- -------- -------- ---- ----- ---------- --------- ---------------- -------------------- -------------------
LOAN PROPERTY PROPERTY SQ FT OR PAID ENDING SCHEDULED TOTAL P&I Other Expense
PROSPECTUS ID NAME TYPE CITY STATE UNITS THRU DATE LOAN BALANCE ADVANCES OUTSTANDING ADVANCE OUTSTANDING
------------- -------- -------- ---- ----- ---------- --------- ---------------- -------------------- -------------------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
L54 OR L56 OR
L38 L25 L10 L11 L58 OR L73 L68/L92 OR L70/L93 OR
(d) (e)=a+b+c+d L96 L97
------------- -------------------- ----------- ----------- ------------- -------- ----------- ---------- ----------
LOAN TOTAL T & I Total Current Current Maturity LTM NOI/NCF LTM LTM DSCR
PROSPECTUS ID ADVANCES OUTSTANDING EXPOSURE MONTHLY P&I Interest Rate Date Date NOI/NCF (NOI/NCF)
------------- -------------------- ----------- ----------- ------------- -------- ----------- ---------- ----------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
L74 L75 L99 L77 L79 L76
(f) (.90*f) - e
------------- --------- ---------------- ---------------- ------------------ -------- ------------------------- ---------
LOAN VALUATION APPRAISAL BPO OR LOSS USING 90% TOTAL APPRAISAL TRANSFER DATE ASSET EXPECTED TO WORKOUT
PROSPECTUS ID DATE INTERNAL VALUE** APPR. OR BPO (F) REDUCTION REALIZED DATE BE RESOLVED OR FORECLOSED STRATEGY*
------------- --------- ---------------- ---------------- ------------------ -------- ------------------------- ---------
Loan
Prospectus ID Comments
------------- --------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
*Workout Strategy should match the CMSA Loan Periodic Update File using abbreviated words in place of a code number such as (FCL -
In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale,
BK - Bankruptcy, PP - Payment Plan, TBD - To be determined etc...). It is possible to combine the status codes if the loan is going
in more than one direction (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO).
**BPO - Broker opinion
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
CSMA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
as of _______________________
(LOAN LEVEL REPORT)
S4 S57 S58 L49 L48 L7* L7* L50*
-----------------------------------------------------------------------------------------------------------------------------------
BALANCE
EXTENSION WHEN
MOD/ PER EFFECTIVE SENT TO BALANCE AT THE # MTHS
PROSPECTUS EXTENSION DOCS OR DATE OF SPECIAL EFFECTIVE DATE OF OLD FOR RATE
ID CITY STATE FLAG SERVICER MODIFICATION SERVICER MODIFICATION RATE CHANGE
----------- -------- --------- ----------- ----------- ------------- --------- ------------------ ------- -----------
THIS REPORT IS HISTORICAL
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
L50* L25* L25* L11* L11* L47
--------------------------------------------------------------------------------------------------------------------------
(2) EST.
FUTURE
INTEREST
TOTAL # (1) LOSS TO
MTHS FOR REALIZED TRUST $
NEW NEW OLD NEW CHANGE LOSS TO (RATAE
RATE ▇▇▇ ▇&▇ ▇&▇ MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
----------- -------- --------- ----------- ----------- ------------ --------- ------------------ -------------
THIS REPORT IS HISTORICAL
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
--------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
---------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should not change on this report once assigned.
Future modifications done on the same loan are additions to the report.
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
EXHIBIT S
FORM OF HISTORICAL LIQUIDATION REPORT
CSMA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF or NOTE SALE)
as of _______________________
(LOAN LEVEL REPORT)
S4 S55 S61 S57 S58 L75 L29 L45
(c) = b/a (a) (b) (d)
-----------------------------------------------------------------------------------------------------------------------------------
EFFECTIVE EFFECTIVE NET AMT
PROSPECTUS PROPERTY PROPERTY DATE OF PRICE DATE OF SALES RECEIVED
LOAN ID NAME TYPE CITY STATE LIQUIDATION SALES LIQUIDATION PRICE FROM SALE
----------- -------- --------- ----------- ----------- ------------- --------- ------------- --------- -----------
-----------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------------
Total all Loans:
Current Month Only:
-----------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
(▇)▇▇-
(e) (f) (g) (h) (f+g+h) (k) (m) (n)=k+m (o)=n/e
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL
T&I DATE OF
TOTAL AND OTHER DATE MINOR
ENDING P&I EXPENSE SERVICING LOSS ADJ TOTAL LOSS LOSS % OF
SCHEDULED ADVANCE ADVANCE FEES NET REALIZED PASSED MINOR ADJ PASSED WITH SCHEDULED
BALANCE OUTSTANDING OUTSTANDING EXPENSE PROCEEDS LOSS THRU TO TRUST THRU ADJUSTMENT BALANCE
-------- ----------- ------------- ----------- -------- --------- --------- ---------- --------- ----------- ---------
-----------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
-----------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer .
EXHIBIT T
FORM OF NOI ADJUSTMENT WORKSHEET
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(includes Retail/Office/Industrial/Warehouse/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
Statement Classification ACTUAL ADJUSTMENT NORMALIZED
-------- ---------- ----------
Gross Potential Rent (2)
Less: Vacancy Loss
OR
Base Rent (2)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
EFFECTIVE GROSS INCOME
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative
$amt for Vacancy 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 (includes 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
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED NOTES
-------- ---------- ---------- -----
Statement Classification
Gross Potential Rent (2) Include Pad/RV rent
Less: Vacancy Loss
OR
Base Rent (2)
Laundry/Vending Income
Parking Income
Other Income Include forfeited security/late fees/pet
EFFECTIVE GROSS INCOME
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $
amt for Vacancy 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
LODGING NOI ADJUSTMENT WORKSHEET
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 Daily Rate
Rev per Av. Room
(1) Total $ amount of Capital Reserves required annually by loan documents.
INCOME: YYYY NOTES
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED
-------- ---------- ----------
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
DEPARTMENTAL REVENUE: (2)
(2) Report Departmental Revenue as EGI for CMSA Loan Periodic and Property files
OPERATING EXPENSES:
DEPARTMENTAL
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
GENERAL/UNALLOCATED
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
OPERATING EXPENSE RATIO
(=Departmental Revenue/(Dept. Exp. + General Exp.))
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
HEALTHCARE NOI ADJUSTMENT WORKSHEET
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
Statement Classification ACTUAL ADJUSTMENT NORMALIZED
-------- ---------- ----------
Gross Potential Rent (2)
Less: Vacancy Loss
OR
Private Pay (2)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
EFFECTIVE GROSS INCOME
(2) Use either Gross Potential (with Vacancy Loss) or Private
Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
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 U
FORM OF OPERATING STATEMENT ANALYSIS REPORT
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(includes Retail/Office/Industrial/Warehouse/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 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,
excl. Leasing Commission and TI's
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / /XX VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent (3)
Expense Reimbursement
Percentage Rent
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 Loss) or Base Rents; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Capital Expenditures
Extraordinary Capital Expenditures
*TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT (includes 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 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
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / / VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Gross Potential Rent (3)
Less: Vacancy 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 Loss) or Base Rents; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/Debt Service)
*DSCR: (NCF/Debt Service)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
LODGING OPERATING STATEMENT ANALYSIS REPORT
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 UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
Occupancy Rate (physical)
Occupancy Date
Average Daily Rate
Rev per Av. Room
(1) Total $ amount of Capital Reserves required annually by loan documents
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / / VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
*DEPARTMENTAL REVENUE
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
OPERATING EXPENSES:
DEPARTMENTAL
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
GENERAL/UNALLOCATED
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
OPERATING EXPENSE RATIO
(=Departmental Revenue/(Dept. Exp. + General Exp.))
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% DEPT REVENUE, DEPT EXPENSES, GENERAL 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 Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
HEALTHCARE OPERATING STATEMENT ANALYSIS REPORT
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 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
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / / VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Room Revenue
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Private Pay (3)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
*EFFECTIVE GROSS INCOME
(2) Servicer will not be expected to "Normalize" these TTM/YTD numbers.
(3) Use either Gross Potential (with Vacancy Loss) or
Private Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
REVENUE LEGEND
GPR Gross Potential Rent x x x x x x x x
VAC Vacancy Loss x x x x x x x x
BR Base Rent x x x x x x x
ER Expense Reimbursements x x x x
PR Percentage Rent x x
LV Laundry/Vending Income x x
PI Parking Income x x x x
OI Other Income x x x x x x x x x
RMRV Room Revenue x
FBV Food & ▇▇▇ Revenues x
TLRV Telephone Revenue x x
ODR Other Departmental Revenue x
PRI Private Pay x
MED Medicare/Medicaid Revenues x
NUR Nursing/Medical Income x
MLS Meals Income x
REVENUE LINE ITEMS
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Application Fees OI OI OI OI OI OI OI ********* *********
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Base Rent BR BR BR BR BR BR BR ********* *********
Beverage Revenue ********* ********* ********* ********* ********* ********* ********* FBV *********
Box & Lock Sales ********* ********* ********* ********* ********* ********* OI ********* *********
Cable OI OI ********* ********* ********* ********* ********* ********* *********
CAM ********* ********* ER ER ********* ER ********* ********* *********
Club House Rental OI OI ********* ********* ********* ********* ********* ********* *********
Concessions VAC VAC VAC VAC VAC VAC VAC ********* VAC
Employee Rent BR BR ********* ********* ********* ********* ********* ********* *********
Escalation Income ********* BR BR BR BR BR BR ********* *********
Food & Beverage Revenues ********* ********* ********* ********* ********* ********* ********* FBV MLS
Forfeited Security Deposits OI OI OI OI OI OI OI OI OI
Gain on Sale ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Garage PI PI PI PI ********* PI ********* OI OI
Gross Potential Rent GPR GPR GPR GPR GPR GPR GPR ********* GPR
Gross Rent BR BR BR BR BR BR BR ********* *********
Insurance Proceeds ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Interest Income ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Laundry LV LV ********* OI ********* OI ********* ********* *********
Laundry/Vending LV LV ********* OI ********* OI ********* ********* *********
Meals Income ********* ********* ********* ********* ********* ********* ********* ********* MLS
Medicare/Medicaid Revenues ********* ********* ********* ********* ********* ********* ********* ********* MED
Miscellaneous Income OI OI OI OI OI OI OI OI OI
Mobile Home Sales ********* ELIMINATE ********* ********* ********* ********* ********* ********* *********
NSF Fees OI OI OI OI OI OI OI OI OI
Nursing/Medical ********* ********* ********* ********* ********* ********* ********* ********* NUR
Other Departmental Revenues ********* ********* ********* ********* ********* ********* ********* ODR *********
Other Income OI OI OI OI OI OI OI OI OI
Pad Rental ********* BR ********* ********* ********* ********* ********* ********* *********
Parking Income PI PI PI PI OI PI OI OI OI
Past Tenants Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Percentage Rent ********* ********* ********* PR ********* PR ********* ********* *********
Prepaid Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Private Pay ********* ********* ********* ********* ********* ********* ********* ********* PRI
Reimbursments OI OI ER ER ER ER ********* ********* *********
Rent BR BR BR BR BR BR BR ********* *********
Rent Loss ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Rent on Park Owned Homes ********* BR ********* ********* ********* ********* ********* ********* *********
Room Revenue ********* ********* ********* ********* ********* ********* ********* RMRV *********
Sales OI OI OI OI ********* ********* ********* ********* *********
Security Deposits Collected ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
Security Deposits Returned ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
Storage OI OI OI OI OI OI OI ********* *********
Tax Reimb ********* ********* ER ER ER ER ********* ********* *********
Telephone Commissions ********* ********* ********* ********* ********* ********* ********* TLRV *********
Telephone Revenue ********* ********* ********* ********* ********* ********* ********* TLRV *********
Temporary Tenants OI OI OI OI OI OI OI ********* *********
Utilities ********* ******** ER ER ER ER ********* ********* *********
Vacancy Loss VAC VAC VAC VAC VAC VAC VAC VAC VAC
Vending LV LV OI OI OI OI OI OI OI
CMSA INVESTOR REPORTING PACKAGE
MASTER CODING MATRIX (CONT'D)
COMMERCIAl
----------
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
EXPENSE LEGEND
RET Real Estate Taxes x x x x x x x x x
PINS Property Insurance x x x x x x x x x
UTL Utilities x x x x x x x x x
R&M Repairs and Maintenance x x x x x x x x x
FFEE Franchise Fees x
JAN Janitorial x x x x
MFEE Management Fees x x x x x x x x x
P&B Payroll & Benefits x x x x x x x x x
A&M Advertising & Marketing x x x x x x x x x
PFEE Professional Fees x x x x x x x x x
G&A General and Administrative x x x x x x x x x
OEXP Other Expenses x x x x x x x x x
GDR Ground Rent x x x x x x x x x
RMSE Room Expense (Departmental)
RMSHK Room Expense - Housekeeping x
F&B Food & Beverage (Departmental) x
MLSE Meals Expense x
DTEL Telephone (Departmental) x
ODE Other Departmental Expense x x x x x
LC Leasing Commissions x x x x x
TI Tenant Improvements
CAPEX Capital Expenditures x x x x x x x x x
ECAPEX Extraordinary Capital x x x x x x x x x
Expenditures
EXPENSE LINE ITEMS
COMMERCIAl
----------
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
401K P&B P&B P&B P&B P&B P&B P&B P&B P&B
Accounting Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Administrative Fee G&A G&A G&A G&A G&A G&A G&A G&A G&A
Advalorem Tax G&A G&A G&A G&A G&A G&A G&A G&A G&A
Advertising A&M A&M A&M A&M A&M A&M A&M A&M A&M
Advertising & Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
Alarm System G&A G&A G&A G&A G&A G&A G&A G&A G&A
Amortization ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Ancillary Expense OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Answering Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
Apartment Finder/Guide A&M ********* ********* ********* ********* ********* ********* ********* *********
Asset Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
Auto Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Bank Charges G&A G&A G&A G&A G&A G&A G&A G&A G&A
Banners A&M A&M A&M A&M A&M A&M A&M A&M A&M
Bonuses P&B P&B P&B P&B P&B P&B P&B P&B P&B
Bookkeeping Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Brochures A&M A&M A&M A&M A&M A&M A&M A&M A&M
Business License G&A G&A G&A G&A G&A G&A G&A G&A G&A
Cable G&A G&A G&A G&A G&A G&A G&A G&A G&A
CAM R&M R&M R&M R&M R&M R&M R&M R&M R&M
Capital Expenditures CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
Cleaning R&M R&M JAN JAN JAN JAN R&M R&M RMSHK
Commissions G&A G&A G&A G&A G&A G&A G&A G&A G&A
Computer Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
Contract Work P&B P&B P&B P&B P&B P&B P&B P&B P&B
Courtesy Patrol G&A G&A G&A G&A G&A G&A G&A G&A G&A
Credit Card Fees ********* ********* ********* ********* ********* ********* ********* G&A *********
Credit Check G&A G&A G&A G&A G&A G&A G&A G&A G&A
Depreciation ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Education G&A G&A G&A G&A G&A G&A G&A G&A G&A
Electrical R&M R&M R&M R&M R&M R&M R&M R&M R&M
Electricity UTL UTL UTL UTL UTL UTL UTL UTL UTL
Elevator R&M R&M R&M R&M R&M R&M R&M R&M R&M
Employee Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
Employee Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
Entertainment G&A G&A G&A G&A G&A G&A G&A G&A G&A
Eviction Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
Extraordinary Capital ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX
Expenditures
Exterminating Service R&M R&M R&M R&M R&M R&M R&M R&M R&M
FF & E Reserve CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
FICA P&B P&B P&B P&B P&B P&B P&B P&B P&B
Financing Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Flood Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
CMSA INVESTOR REPORTING PACKAGE
MASTER CODING MATRIX (CON'T)
EXPENSE LINE ITEMS
(CONTINUED)
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Floor Covering Replacement R&M R&M R&M R&M R&M R&M R&M R&M R&M
Food & Beverage Expense ********* ********* ********* ********* ********* ********* ********* F&B *********
(Departmental)
Franchise Fees ********* ********* ********* ********* ********* ********* ********* FFEE *********
Freight & Shipping G&A G&A G&A G&A G&A G&A G&A G&A G&A
Gas UTL UTL UTL UTL UTL UTL UTL UTL UTL
General & Administrative G&A G&A G&A G&A G&A G&A G&A G&A G&A
Ground Rent GDR GDR GDR GDR GDR GDR GDR GDR GDR
Hazard Liability PINS PINS PINS PINS PINS PINS PINS PINS PINS
Health Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
HVAC R&M R&M R&M R&M R&M R&M R&M R&M R&M
Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
Interest ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Janitorial R&M R&M JAN JAN JAN JAN ********* ********* RMSHK
Land Lease GDR GDR GDR GDR GDR GDR GDR GDR GDR
Landscaping (Exterior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
Landscaping/Plants (Interior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
Leased Equipment G&A G&A G&A G&A G&A G&A G&A G&A G&A
Leasing Comissions ********* ********* LC LC LC LC LC ********* *********
Leasing Office Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
Legal Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Licenses G&A G&A G&A G&A G&A G&A G&A G&A G&A
Life Insurance ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Life Safety G&A G&A G&A G&A G&A G&A G&A G&A G&A
Loan Principal ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Locks/Keys R&M R&M R&M R&M R&M R&M R&M R&M R&M
Maid Service R&M R&M JAN JAN JAN JAN ********* ********* RMSHK
Make Ready R&M R&M R&M R&M R&M R&M R&M R&M R&M
Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
Manager Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
Meals Expense ********* ********* ********* ********* ********* ********* ********* FMB MLSE
Mechanical R&M R&M R&M R&M R&M R&M R&M R&M R&M
Media Commissions A&M A&M A&M A&M A&M A&M A&M A&M A&M
Mileage G&A G&A G&A G&A G&A G&A G&A G&A G&A
Miscellaneous OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Miscellaneous G & A G&A G&A G&A G&A G&A G&A G&A G&A G&A
Model Apartment G&A ********* ********* ********* ********* *********
Newspaper A&M A&M A&M A&M A&M A&M A&M A&M A&M
Office Supplies G&A G&A G&A G&A G&A G&A G&A G&A G&A
Other Departmental Expense ********* ********* ********* ********* ********* ********* ********* ODE *********
Other Expenses OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Owners Draw ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Painting R&M R&M R&M R&M R&M R&M R&M R&M R&M
Parking Lot R&M R&M R&M R&M R&M R&M R&M R&M R&M
Partnership Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Payroll & Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
Payroll Taxes P&B P&B P&B P&B P&B P&B P&B P&B P&B
Permits G&A G&A G&A G&A G&A G&A G&A G&A G&A
Personal Property Taxes G&A G&A G&A G&A G&A G&A G&A G&A G&A
Pest Control R&M R&M R&M R&M R&M R&M R&M R&M R&M
Plumbing R&M R&M R&M R&M R&M R&M R&M R&M R&M
Pool R&M R&M ********* ********* ********* R&M ********* R&M R&M
Postage G&A G&A G&A G&A G&A G&A G&A G&A G&A
Printing G&A G&A G&A G&A G&A G&A G&A G&A G&A
Professional Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Promotions A&M A&M A&M A&M A&M A&M A&M A&M A&M
Property Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
Real Estate Taxes RET RET RET RET RET RET RET RET RET
Repair Escrow CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
Repairs & Maintenance R&M R&M R&M R&M R&M R&M R&M R&M R&M
Room Expense (Departmental) ********* ********* ********* ********* ********* ********* ********* RMSE *********
Room Expense-Housekeeping ********* ********* ********* ********* ********* ********* ********* RMSE ***RMSHK*
Rubbish Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
Scavenger R&M R&M R&M R&M R&M R&M R&M R&M R&M
Security G&A G&A G&A G&A G&A G&A G&A G&A G&A
Sewer UTL UTL UTL UTL UTL UTL UTL UTL UTL
Signage A&M A&M A&M A&M A&M A&M A&M A&M A&M
Snow Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
Subscriptions/Dues G&A G&A G&A G&A G&A G&A G&A G&A G&A
Telephone G&A G&A G&A G&A G&A G&A G&A ********* G&A
Telephone (Departmental) ********* ********* ********* ********* ********* ********* ********* DTEL *********
Temporary Help P&B P&B P&B P&B P&B P&B P&B P&B P&B
CMSA INVESTOR REPORTING PACKAGE
MASTER CODING MATRIX (CON'T)
EXPENSE LINE ITEMS
(CONTINUED)
COMMERCIAl
----------
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Tenant Improvements ********* ******** TI TI TI TI TI ********* *********
Trash Removal UTL UTL UTL UTL UTL UTL UTL UTL UTL
Travel G&A G&A G&A G&A G&A G&A G&A G&A G&A
Turnover R&M R&M TI TI TI TI TI ********* R&M
Unemployment Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
Uniform Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
Utilities UTL UTL UTL UTL UTL UTL UTL UTL UTL
Utility Vehicle G&A G&A G&A G&A G&A G&A G&A G&A G&A
Vehicle Lease G&A G&A G&A G&A G&A G&A G&A G&A G&A
Water UTL UTL UTL UTL UTL UTL UTL UTL UTL
Worker's Comp P&B P&B P&B P&B P&B P&B P&B P&B P&B
Yellow Pages A&M A&M A&M A&M A&M A&M A&M A&M A&M
EXHIBIT V
FORM OF INTERIM DELINQUENT LOAN STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
as of ______________
(Loan Level Report)
--------------------------------------------------------
S4 L8
---------- ------------ -------------------------
LOAN PAID
PROSPECTUS THRU COMMENTS
ID DATE
---------- ------------ -------------------------
Loan(s) Delinquent as of Month End
EXHIBIT W
FORM OF CMSA PERIODIC UPDATE FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE 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 Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of
current period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current
period that is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency < the
date the loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The
Current Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate
The Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate
The Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc
Of The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I 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 Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by
Servicer per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction -
The difference between a full advance and the
reduced advance is the ASER or as 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 Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted
to the 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 Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Preceding
Fiscal Yr Debt Svc Cvrge Ratio using NOI
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ] for
each Property, if missing any then leave empty
Preceding Fiscal Year Financial As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year Operating Expenses 60 Numeric 1000.00 P62 - If Multiple properties then sum the value,
if 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 Debt Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Second
Preceding Fiscal Year Debt Service Coverage
Ratio using NOI
Second Preceding Fiscal Year Physical Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ] for
each Property, if missing any then leave empty
Second Preceding Fiscal Year Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Revenue 66 Numeric 1000.00 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 Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Appraisal Value 75 Numeric 100000.00 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 Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary
Servicer
Date Asset Expected to Be Resolved or Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then print the
latest date from the affiliated properties.
If in Foreclosure - Expected Date of
Foreclosure and if REO - Expected Sale Date.
Blank 80 AN Blank Left blank on purpose. (Note : was previously
Year Renovated. Use the Property File field
15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date
will be the same as setup file unless the loan
is modified and a new date assigned
Most Recent Financial Indicator 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 Indicator 88 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties. See DSCR
Indicator Legend.
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties. See DSCR
Indicator Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial period.
See NOI/NCF Indicator Legend. P84 - If Multiple
Properties and all the same then print value,
if missing any or if the values are not the
same, then leave empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower-
empty if never 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 DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service
Coverage Ratio using Net Cash Flow related to
Financial As of Date L65. If Multiple
properties populate using the "DSCR Indicator
Legend" rule.
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to
Financial As of Ending Date L73. If Multiple
properties then sum the value, if missing any
then populate using the "DSCR Indicator Legend"
rule
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio
using Net Cash Flow related to Financial As of
Ending Date L73. If Multiple properties
populate using the "DSCR Indicator Legend"
rule.
Defeasance Status 98 AN Text See Defeasance Status Legend
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the
principal balance over the defined appraisal
% or as defined in the trust documents
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
-----------------------------------------
WORKOUT STRATEGY CODE
LEGEND
-----------------------------------------
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
11 Full Payoff
12 Reps and Warranties
13 Other or TBD
------------------------------------------
------------------------------------------
LIQUIDATION/PREPAYMENT CODE
LEGEND
-----------------------------------------
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase/ Substitution
5 Full Payoff At Maturity
6 DPO
7 Liquidation
8 Payoff w/ penalty
9 Payoff w/ yield Maintenance
10 Curtailment w/ Penalty
11 Curtailment w/ Yield Maintenance
------------------------------------------
------------------------------------------
DEFEASANCE STATUS
LEGEND
------------------------------------------
P Partial Defeasance
F Full Defeasance
N No Defeasance Occurred
X Defeasance not Allowable
------------------------------------------
--------------------------------------------------------------------------------
STATUS OF MORTGAGE LOAN
LEGEND
--------------------------------------------------------------------------------
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 30 days Delinquent
0 Current
1 30-59 Days Delinquent
2 60-89 Days Delinquent
3 90+ Days Delinquent
4 Assumed Scheduled Payment (Performing Matured Balloon)
7 Foreclosure
9 REO
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
MODIFICATION CODE
LEGEND
--------------------------------------------------------------------------------
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCR 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 one "rolled up"
financial from the borrower
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NOI/NCF INDICATOR
LEGEND
--------------------------------------------------------------------------------
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
--------------------------------------------------------------------------------
EXHIBIT X-1
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS)
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C1
In accordance with Section 3.15 of the Pooling and Servicing
Agreement dated as of March 1, 2001 (the "Pooling and Servicing Agreement"),
among First Union Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), First Union National Bank, as master servicer and as special
servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (in such capacity,
the "Trustee"), with respect to the First Union National Bank--Bank of America,
N.A. Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2001-C1 (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from its agents and auditors), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided that the undersigned may provide
all or any part of the Information to any other person or entity that
holds or is contemplating the purchase of any Certificate or interest
therein, but only if such person or entity confirms in writing such
ownership interest or prospective ownership interest and agrees to keep it
confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require registration
of any Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the
Trust for any loss, liability or expense incurred thereby with respect to
any such breach by the undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
BENEFICIAL HOLDER OF A
CERTIFICATE
By:____________________________________
Name:_______________________________
Title:______________________________
Phone:______________________________
EXHIBIT X-2
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) - CTS Link Customer Service
Re: First Union National Bank--Bank of America, N.A. Commercial Mortgage
Trust Commercial Mortgage Pass-Through Certificates,
Series 2001-C1 (the "Certificates")
------------
In accordance with Section 3.15 of the Pooling and Servicing
Agreement, dated as of March 1, 2001 (the "Pooling and Servicing Agreement"),
among First Union Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), First Union National Bank as master servicer and as special
servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. as trustee (in such capacity, the
"Trustee"), with respect to the First Union National Bank--Bank of America, N.A.
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C1 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is contemplating an investment in the Class __
Certificates.
2. The undersigned is requesting access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the "Information") for use in evaluating such possible
investment.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from its agents and auditors), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require registration
of any Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the
Trust for any loss, liability or expense incurred thereby with respect to
any such breach by the undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:_______________________________
Title:______________________________
Phone:______________________________
EXHIBIT Y
FORM OF CMSA BOND FILE REPORT
CSSA
BOND LEVEL FILE LAYOUT
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
VERSION 1.0 (12/31/98)
--------------------------------------- ------------------ ------------ ----------------------------------------------------------
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------- ------------- ------------ ----------------------------------------------------------
------------------------------------------- ------------- ------------ ----------------------------------------------------------
Character Set ASCII
Field Delineation Comma
------------------------------------------- ------------- ------------ ----------------------------------------------------------
------------------------------------------- ------------- ------------ ----------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic (Consistent With CSSA
Periodic Loan File)
Distribution Date 2 AN YYYYMMDD Date Payments Made To Certificateholders
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be Considered Holder Of
Record
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
Original Balance 6 Numeric 1000000.00 The Class Balance At Inception Of The Issue
Notional Flag 7 AN Y "Y" For Notional
Beginning Balance 8 Numeric 100000.00 The Outstanding Principal Balance Of The Class At The
Beginning Of The Current Period
Scheduled Principal 9 Numeric 1000.00 The Scheduled Principal Paid
Unscheduled Principal 10 Numeric 1000.00 The Unscheduled Principal Paid
Total Principal Distribution 11 Numeric 1000.00 Total Principal Payment Made
Deferred Interest 12 Numeric 1000.00 Any Interest Added To The Class Balance Including Negative
Amortization
Realized Loss (Gain) 13 Numeric 1000.00 The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses 14 Numeric 100000.00 Realized Losses Allocated Cumulative-To-Date.
Ending Balance 15 Numeric 1000.00 Outstanding Principal Balance Of The Class At The End Of
The Current Period
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The Calculation Of
Current Period Remittance Interest Rate
Current Remittance Rate / Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To The Calculation Of
Current Period Remittance Interest
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,4=Actual/Actual,
5=Actual/366
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To The Calculation
Of Current Period Remittance Interest
Interest Accrued 20 Numeric 1000.00 The Amount Of Accrued Interest
Prepayment Penalty/Premium Allocation 21 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated
Other Interest Distribution 23 Numeric 1000.00 Other Specific Additions To Interest
Prepayment Interest Shortfall 24 Numeric 1000.00 Total Interest Adjustments For PPIS
Appraisal Reduction Allocation 25 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Other Interest Shortfall 26 Numeric 1000.00 Total Interest Adjustments Other Than PPIS
Total Interest Distribution 27 Numeric 1000.00 The Total Interest Payment Made
Cumulative Appraisal Reduction 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Cummualtive Prepayment Penalty/Premium
Allocation 29 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated To Date
CummualtiveYield Maintenance Allocation 30 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated To
Date
Beginning Unpaid Interest Balance 31 Numeric 1000.00 Outstanding Interest Shortfall At The Beginning Of The
Current Period
Ending Unpaid Interest Balance 32 Numeric 1000.00 Outstanding Interest Shortfall At The End Of The Current
Period
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff & ▇▇▇▇▇▇
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By Duff & ▇▇▇▇▇▇
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Duff & ▇▇▇▇▇▇
Fitch - Orignal Rating 36 AN AAA The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of The Class By Fitch
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Fitch
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of The Class By Moody's
Moody's - Date Transmitted from Rating
Agency 41 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Moody's
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By Standard & Poors
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By Standard & Poors
Standard & Poors - Date Transmitted from
Rating Agency 44 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Standard & Poors
------------------------------------------- ------------- ------------ ----------------------------------------------------------
EXHIBIT Z
FORM OF CMSA COLLATERAL SUMMARY FILE
CSSA
COLLATERAL SUMMARY FILE LAYOUT
COLLATERAL LEVEL SUMMARY - SUMMARIZES CSSA 100.1 PERIODIC FILE
VERSION 1.0 (12/31/98)
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
PERIODIC
FIELD FORMAT
FIELD NAME REFERENCE # # TYPE EXAMPLE DESCRIPTION/COMMENTS
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
Character Set ASCII
Field Delineation Comma
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97001 Unique Identification Number Assigned To Each Loan
Group Within An Issue
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certificateholders
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
Ending current period collateral balance 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at end of
current period
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
1 month Delinquent - scheduled balance 8 Numeric 1000.00 Scheduled principal balance of loans one month
delinquent
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
2 months Delinquent - scheduled balance 10 Numeric 1000.00 Scheduled principal balance of loans two months
delinquent
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
3 months Delinquent - scheduled balance 12 Numeric 1000.00 Scheduled principal balance of loans three months
delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure - overrides loans in
delinquency
Foreclosure - scheduled balance 14 Numeric 1000.00 Scheduled principal balance of loans in foreclosure -
overrides loans in delinquency
REO - number 15 Numeric 1 Number of REOs - overrides loans in delinquency or
foreclosure
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrrides loans in delinquency
or foreclosure
Specially serviced - number 17 Numeric 1 Number of specially serviced loans - includes loans
in delinquency, foreclosure, REO
Specially serviced - scheduled balance 18 Numeric 1000.00 Scheduled principal of Specially Serviced loans
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included in
delinquency aging category
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in bankruptcy -
included in delinquency aging category
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the current period
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in full for the
current period.
Total unscheduled principal 27+28 23 Numeric 1000.00 Includes prepayments in full, partial pre-payments,
curtailments in the current period
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield maintenance
penalties on the loans for the period.
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current period
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of
The Current Period
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve accounts
pledged as credit enhancement
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve accounts pledged
as credit enhancement
Amortization WAM 34 Numeric 333 Weighted average maturity based on amortization term
Maturity WAM 35 Numeric 333 Weighted average maturity based on term to maturity
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to calculate gross
interest
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
EXHIBIT AA
FORM OF UPDATED COLLECTION REPORT
Servicer
First Union 2001-C1
EXHIBIT
For the Collection Period Ending:
Master Servicer Remittance Date
UPDATED COLLECTION REPORT
----------------------------------------------------------------------------------------------------------------------------
Primary Prospectus Primary Scheduled Scheduled Current Current Paid To Updated Primary
Servicer ID Loan Loan Principal Interest Principal Interest Date at Paid To Servicer
Number Number Amount Amount Advance Advance Determination Date Fees
----------------------------------------------------------------------------------------------------------------------------
TABLE (continued)
-----------------------------------------------------------
Primary Sub Master Retained Net Advance
Servicer ID Servicer Servicer Fees
Fees Fees
-----------------------------------------------------------
EXHIBIT BB
FORM OF CMSA FINANCIAL FILE
CMSA FINANCIAL FILE SPECIFICATIONS
--------------------------------------------------------------------------------
RECORD LAYOUT
--------------------------------------------------------------------------------
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property Seq # 001 - 999
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 as an Absolute Value)
--------------------------------------------------------------------------------
Key: Trans ID
Loan #
Property Seq #
YYYYMM Financial Statement Ending Date
Data Type
Statement Type
Category Code
--------------------------------------------------------------------------------
SAMPLE ASCII PRESENTATION (PREFERRED)
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,510CAPEX,999999.99
--------------------------------------------------------------------------------
SAMPLE SPREADSHEET PRESENTATION
--------------------------------------------------------------------------------
BEGIN ENDING DATA STMT
TRANS ID LOAN # PROP # YYYYMM YYYYMM TYPE TYPE CATEGORY AMOUNT
--------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 510CAPEX 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 510CAPEX 999999.99
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: Vacancy/Collection Loss o o o
030BASERNT Base Rent o o
040EXPREMB Expense Reimbursement o
050PCTRENT Percentage Rent o
060ROOMREV Room Revenue o
070FOODBEV Food & Beverage Revenues o
080PHONE Telephone Revenue o
090OTHDREV Other Departmental Revenue o
100PVTPAY Private Pay o
110MEDCARE Medicare/Medicaid o
120NURSING Nursing/Medical Income o
130MEALS Meals Income o
140LAUNDRY Laundry/Vending Income o
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 (Departmental) o
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 Maintenance o o o o
350JANITOR Janitorial o
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Fee o
370MANAGEM Management Fees o o o o
380PAYROLL Payroll & Benefits o o o o
390MARKETI Advertising & Marketing o o o o
400PROFESS Professional Fees o o o o
410GENERAL General and Administrative o o o o
420ROOMS Room Expense - Housekeeping o
430MEALS Meal expense o
440OTHEREX Other Expenses o o o o
450GROUNDR Ground Rent o o o o
RESRV &
CAPEX
490LEASING Leasing Commissions o
500TENANTI Tenant Improvements o
510CAPEX Capital Expenditures o o o o
520EXCAPEX Extraordinary Capital Expenditures o o o o
--------------------------------------------------------------
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 CC
FORM OF CMSA LOAN SETUP FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "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 Indentification Number Assigned To Each Loan Group Within
An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number 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...
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 (Y/N) 38 AN Y Y=Yes, N=No
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
Contribution 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At Contribution
Scheduled Principal Balance
At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan 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
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current 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
Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at 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
Contribution 63 Numeric 75 P17 - For Multiple properties, if all the same 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
Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by 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
Contribution 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if missing any then
populate using the "DSCR Indicator Legend" rule. Should match
the prospectus if available.
Contribution Financials
As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all the same then 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
Grouping 75 AN Text P6 - All Loans With The Same Value Are Crossed, For 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 (Y/N) 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes 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
Securitization 86 AN Text Name of entity ultimately responsible for the reps and warranties of
the loan contributed
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "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
--------------------------------------------------------------------- G 1 Month LIBOR
PROPERTY TYPES CODE H 3 Month LIBOR
LEGEND I 6 Month LIBOR
--------------------------------------------------------------------- J National Mortgage Index Rate
MF Multifamily All Others Use Short Text Description
RT Retail ---------------------------------------------------------
HC Health Care
IN Industrial
WH Warehouse ---------------------------------------------------------
MH Mobile Home Park PAYMENT TYPE CODE
OF Office LEGEND
MU Mixed Use ---------------------------------------------------------
LO Lodging 1 Fully Amortizing
SS Self Storage 2 Amortizing Balloon
OT Other 3 Interest Only / Balloon
SE Securities 4 Interest Only / Amortizing
5 Interest Only / Amortizing / Balloon
6 Principal Only
7 Hyper-Amortization
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