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XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
and
AMRESCO SERVICES, L.P.,
as Master Servicer,
and
BANC ONE MORTGAGE CAPITAL MARKETS LLC,
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee,
--------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 1999
--------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-FNV1
--------------------------------------------------------------------------------
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate.........................................A-1
Exhibit A-2 Form of Class A-2 Certificate.........................................A-2
Exhibit A-3 Form of Class B Certificate...........................................A-3
Exhibit A-4 Form of Class C Certificate...........................................A-4
Exhibit A-5 Form of Class D Certificate...........................................A-5
Exhibit A-6 Form of Class E Certificate...........................................A-6
Exhibit A-7 Form of Class F Certificate...........................................A-7
Exhibit A-8 Form of Class G Certificate...........................................A-8
Exhibit A-9 Form of Class H Certificate...........................................A-9
Exhibit A-10 Form of Class J Certificate..........................................A-10
Exhibit A-11 Form of Class K Certificate..........................................A-11
Exhibit A-12 Form of Class L Certificate..........................................A-12
Exhibit A-13 Form of Class M Certificate..........................................A-13
Exhibit A-14 Form of Class N Certificate..........................................A-14
Exhibit A-15 Form of Class O Certificate..........................................A-15
Exhibit A-16 Form of Class R-I Certificate........................................A-16
Exhibit A-17 Form of Class R-II Certificate.......................................A-17
Exhibit A-18 Form of Class R-III Certificate......................................A-18
Exhibit A-19 Form of Class X Certificate..........................................A-19
Exhibit B-1 Form of Initial Certification of Trustee..............................B-1
Exhibit B-2 Form of Final Certification of Trustee................................B-2
Exhibit C Form of Request for Release.............................................C
Exhibit D-1 Transfers of Definitive Privately Offered Certificates...............D1-1
Exhibit D-2A Form I of Transferee Certificate For Transfers of Definitive
Privately Offered Certificates....................................D2-1
Annex 1 Qualified Institutional Buyer Status Under SEC Rule 144A.............D2-3
Annex 2 Qualified Institutional Buyer Status Under SEC Rule 144A.............D2-6
Exhibit D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates.........................D2-8
Exhibit D-3A Form I of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates......................D3-1
Exhibit D-3B Form II of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates......................D3-3
Annex 1 Qualified Institutional Buyer Status Under SEC Rule 144A.............D3-5
Annex 2 Qualified Institutional Buyer Status Under SEC Rule 144A.............D3-8
Exhibit E Form of Transferor Certificate for Transfers of REMIC
Residual Certificate.................................................E
Exhibit F Form of Transfer Affidavit and Agreement for Transfers
of REMIC Residual Certificates.......................................F
Exhibit G-1 Form of Monthly Certificateholder Report..............................G-1
Exhibit G-2 Form of Specially Serviced Asset Report...............................G-2
Exhibit H-1 Comparative Financial Status Report...................................H-1
Exhibit H-2 Delinquent Loan Status Report.........................................H-2
Exhibit H-3 Historical Loan Modification Report...................................H-3
Exhibit H-4 Historical Loss Estimate Report.......................................H-4
Exhibit H-5 REO Status Report.....................................................H-5
Exhibit H-6 Watch List ...........................................................H-6
Exhibit H-7 Operating Statement Analysis..........................................H-7
Exhibit H-8 NOI Adjustment Worksheet .............................................H-8
Exhibit H-9 CSSA Reports .........................................................H-9
Exhibit H-10 CSSA Reports ........................................................H-10
Exhibit H-11 CSSA Reports ........................................................H-11
SCHEDULES
Schedule I FINOVA Loan Schedule....................................................I
Schedule II Owner Trust Loan Schedule..............................................II
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR
HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS A-1 CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _____% PER ANNUM,
COMPOUNDED MONTHLY. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY IS THE
EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY
DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING
THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION LOANS. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE
OR ANY OTHER RATE.
A-1-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS A-1 CERTIFICATE AS OF THE CLOSING
DATE $101,000,000
DATE OF POOLING & SERVICING , MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF APRIL 1 1999
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER:
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$101,000,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A-1 Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-1-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-1-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-1-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:_____________________________________
AUTHORIZED OFFICER
Dated: April ___, 1999
A-1-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-1-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________
__________________________________________
_________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________________ _____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-1-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS A-2 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR
HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS A-2 CERTIFICATE WAS ISSUED ON APRIL ___, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _____% PER ANNUM,
COMPOUNDED MONTHLY. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY IS THE
EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY
DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING
THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE
HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION LOANS. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE
OR ANY OTHER RATE.
A-2-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-2-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.53% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS A-2 CERTIFICATE AS OF THE CLOSING
DATE $339,885,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF APRIL 1, 1999
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$339,885,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A-2 Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-2-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-2-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-2-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April ___, 1999
A-2-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:__________________________________
AUTHORIZED SIGNATORY
A-2-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
_____________________________________
____________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-2-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS B CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE.
A-3-1
THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY _______% PER ANNUM, COMPOUNDED MONTHLY. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-3-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.66% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS B CERTIFICATE AS OF THE CLOSING
DATE $33,185,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF APRIL 1, 1999
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS B
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$33,185,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class B Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-3-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-3-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-3-5
tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:____________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-3-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:__________________________________
AUTHORIZED SIGNATORY
A-3-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________
_______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
_____________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-3-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS C CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS C CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS NOT TREATED AS
HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE.
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THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY ______% PER ANNUM, COMPOUNDED MONTHLY. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-4-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.80% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS C CERTIFICATE AS OF THE CLOSING
DATE $26,864,000
DATE OF POOLING & SERVICING
AGREEMENT: AS OF APRIL 1, 1999 MASTER SERVICER: AMRESCO SERVICES, L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS C
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
26,864,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class C Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
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Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-4-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-4-5
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-4-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-4-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any
change whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-4-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS D CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS D CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE
A-5-1
FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT OF OID AS A PERCENTAGE
OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
________%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF
COMPUTING OID WOULD BE APPROXIMATELY _______% PER ANNUM, COMPOUNDED MONTHLY, AND
(III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD (APRIL __,
1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON THIS CERTIFICATE AS A
PERCENTAGE OF THE ORIGINAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
_______%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-5-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 7.03% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS D CERTIFICATE AS OF THE CLOSING
DATE $12,642,000
DATE OF POOLING & SERVICING
AGREEMENT: AS OF APRIL 1, 1999 MASTER SERVICER: AMRESCO SERVICES L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS D
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$12,642,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class D Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-5-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-5-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-5-5
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:__________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-5-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-5-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-5-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS E CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS E CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST" THE
A-6-1
FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF THIS
CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ______% PER
ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE
INITIAL ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF
COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-6-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 7.46% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS E CERTIFICATE AS OF THE CLOSING
DATE $30,025,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1,1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS E NO. 1
CERTIFICATE AS OF THE CLOSING DATE:
$30,025,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class E Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing
A-6-3
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-6-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any
A-6-5
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-6-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:__________________________________
AUTHORIZED SIGNATORY
A-6-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-6-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS F CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY,
A-7-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS F CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-7-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE 7.46 % CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS G CERTIFICATE AS OF THE CLOSING
DATE $14,222,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS G
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$14,222,000
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class F Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing
A-7-3
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-7-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-7-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-7-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-7-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..............
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-7-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS G CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY,
A-8-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS G CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 74.6209% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _____% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-8-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS G CERTIFICATE AS OF THE CLOSING
DATE $20,543,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1,1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS G
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$20,543,000
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class G Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-8-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-8-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-8-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:_________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-8-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:__________________________________
AUTHORIZED SIGNATORY
A-8-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..............
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-8-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
X-0-00
XXXXXXX X-0
[FORM OF CLASS H CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY,
A-9-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS H CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _________% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-9-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS H CERTIFICATE AS OF THE CLOSING
DATE $7,901,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS H
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$7,901,000
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class H Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-9-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-9-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-9-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-9-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-9-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-9-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
____________________ account number ______________ or, if mailed by check, to
__________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-9-10
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY,
A-10-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS J CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-10-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS J CERTIFICATE AS OF THE CLOSING
DATE $9,481,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS J
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$9,481,000
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class J Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing
A-10-3
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-10-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-10-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-10-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-10-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-10-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
___________________ account number ___________________ or, if mailed by check,
to __________________________. Statements should be mailed to
______________________. This information is provided by assignee named above, or
____________________________, as its agent.
A-10-10
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY,
A-11-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS K CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ________% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-11-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS K CERTIFICATE AS OF THE CLOSING
DATE $7,902,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS K
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$7,902,000
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class K Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-11-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-11-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-11-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-11-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-11-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-11-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-11-10
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY,
A-12-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS L CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _____% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY ________%, (II) THE YIELD TO MATURITY OF THIS
CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ________% PER
ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE
INITIAL ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF
COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY ______%. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS
CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION
USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE
BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-12-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS L CERTIFICATE AS OF THE CLOSING
DATE $6,321,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS L
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$6,321,000
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class L Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing
A-12-3
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-12-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-12-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-12-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-12-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any
change whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-12-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-12-10
EXHIBIT A-13
[FORM OF CLASS M CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY,
A-13-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS M CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS ______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS TREATED AS "QUALIFIED
STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE
WOULD BE APPROXIMATELY _______%, (II) THE YIELD TO MATURITY OF THIS CERTIFICATE
FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______% PER ANNUM,
COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF COMPUTING OID ON
THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _______%. THE METHOD USED TO CALCULATE THE
YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD
IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS CERTIFICATE
MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN
CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE BALLOON
PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE HYPERAMORTIZATION
LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT THE
ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-13-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS M CERTIFICATE AS OF THE CLOSING
DATE $6,321,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO.
BALANCE OF THE CLASS L
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$6,321,000
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class M Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-13-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-13-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-13-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:__________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-13-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-13-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-13-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-13-10
EXHIBIT A-14
[FORM OF CLASS N CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY,
A-14-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS N CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS _______% OF THE ORIGINAL
PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED IN
PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS
CERTIFICATE WOULD BE APPROXIMATELY _________%, (II) THE YIELD TO MATURITY OF
THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY ________%
PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO
THE INITIAL ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF
COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY 0.0607%. THE METHOD USED TO
CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE INITIAL
ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL YIELD TO MATURITY AND OID ON THIS
CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE PREPAYMENT ASSUMPTION
USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND THE PAYMENT OF THE
BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF THE
HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-14-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.21% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS N CERTIFICATE AS OF THE CLOSING
DATE $9,841,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. __________
BALANCE OF THE CLASS N
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$9,841,000
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class N Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-14-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
A-14-4
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient
A-14-5
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:__________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-14-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-14-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
A-14-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-14-10
EXHIBIT A-15
[FORM OF CLASS O CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE THIS
CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS
GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT
THE PURCHASE AND OWNERSHIP OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY,
A-15-1
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS AN INVESTMENT
UNIT COMPRISED OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE, AND A BENEFICIAL OWNERSHIP INTEREST IN THE ASSETS OF A GRANTOR TRUST.
THIS CLASS O CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND TO THE EXTENT IT
CONSTITUTES A REMIC REGULAR INTEREST, IT IS TREATED AS HAVING BEEN ISSUED WITH
ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE
OF THIS CERTIFICATE ALLOCATED BY THE DEPOSITOR TO THE REMIC REGULAR INTEREST IS
_______% OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT
THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN
ASSUMPTIONS USED IN PRICING THE CERTIFICATES AND THAT THE STATED INTEREST IS
TREATED AS "QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE
APPLICABLE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL
AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY _________%, (II) THE YIELD TO
MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE
APPROXIMATELY ________% PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL
AMOUNT OF OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15,
1999) FOR PURPOSES OF COMPUTING OID ON THIS CERTIFICATE AS A PERCENTAGE OF THE
ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY _______%.
THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF OID
ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL YIELD TO
MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED AMOUNTS. THE
PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS 0% CPR AND
THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN THE CASE OF
THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-15-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 6.12% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS O CERTIFICATE AS OF THE CLOSING
DATE $6,321,383
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. ________
BALANCE OF THE CLASS O
CERTIFICATE AS OF THE CLOSING DATE: NO. 1
$6,321,383
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class O Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and
A-15-3
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, this Certificate
entitles the holder to receive distributions from amounts, if any, on deposit in
the Excess Interest Distribution Account from time to time, and upon the
termination of the Trust.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
A-15-4
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations
A-15-5
as requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange 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.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-15-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-15-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.............
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-15-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-15-10
EXHIBIT A-16
[FORM OF CLASS R-I CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR 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 ITS BOARD OF DIRECTORS IS
NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN
A-16-1
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), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT
THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS
IN THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES
FIDUCIARY AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON
BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, 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, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-16-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: AMRESCO SERVICES,
R-I CERTIFICATE: _____% L.P.
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER: BANC ONE
AGREEMENT: AS OF APRIL 1, 1999 MORTGAGE CAPITAL MARKETS, LLC
CUT-OFF DATE: APRIL 1, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: APRIL 21, 1999
FIRST DISTRIBUTION DATE:
MAY 15, 1999
NO. _________
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer, the Special Servicer and the Fiscal Agent, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from
A-16-3
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of
A-16-4
not less than 51% of the aggregate Certificate Principal Balance of the
Certificates then outstanding, as specified in the Pooling and Servicing
Agreement. 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 the Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange 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.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the
A-16-5
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof. The parties designated in the Pooling and
Servicing Agreement may exercise their option to purchase the Mortgage Loans and
any other property remaining in the Trust and cause the termination of the Trust
in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-16-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-16-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-16-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-16-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-16-10
EXHIBIT A-17
[FORM OF CLASS R-II CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR 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 ITS BOARD OF DIRECTORS IS
NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN
A-17-1
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), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT
THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS
IN THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES
FIDUCIARY AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON
BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, 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, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-17-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
PERCENTAGE INTEREST OF THIS MASTER SERVICER: AMRESCO SERVICES,
CLASS R-II CERTIFICATE:_____% L.P.
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER: BANC ONE
AGREEMENT: AS OF APRIL 1, 1999 MORTGAGE CAPITAL MARKETS, LLC
CUT-OFF DATE: APRIL 1, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: APRIL 21, 1999
FIRST DISTRIBUTION DATE:
MAY 15, 1999
NO. _________
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Collection Account, the Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from
A-17-3
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of
A-17-4
not less than 51% of the aggregate Certificate Principal Balance of the
Certificates then outstanding, as specified in the Pooling and Servicing
Agreement. 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 the Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange 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.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the
A-17-5
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof. The parties designated in the Pooling and
Servicing Agreement may exercise their option to purchase the Mortgage Loans and
any other property remaining in the Trust and cause the termination of the Trust
in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-17-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-17-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:__________________________________
AUTHORIZED SIGNATORY
A-17-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
A-17-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-17-10
EXHIBIT A-18
[FORM OF CLASS R-III CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
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 ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN
A-18-1
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), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE WHOSE INCOME FROM SOURCES WITHOUT
THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS
IN THE UNITED STATES OR A TRUST SUBJECT TO THE CONTROL OF A UNITED STATES
FIDUCIARY AND THE PRIMARY SUPERVISION OF A UNITED STATES COURT (ANY SUCH PERSON
BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF
SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, 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, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-18-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
PERCENTAGE INTEREST OF THIS MASTER SERVICER: AMRESCO SERVICES,
CLASS R-III CERTIFICATE:___% L.P.
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER: BANC ONE
AGREEMENT: AS OF APRIL 1, 1999 MORTGAGE CAPITAL MARKETS, LLC
CUT-OFF DATE: APRIL 1, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: APRIL 21, 1999
FIRST DISTRIBUTION DATE:
MAY 15, 1999
NO. _________
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-III Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from
A-18-3
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or before the related Record Date, or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of
A-18-4
not less than 51% of the aggregate Certificate Principal Balance of the
Certificates then outstanding, as specified in the Pooling and Servicing
Agreement. 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 the Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange 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.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the
A-18-5
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof. The parties designated in the Pooling and
Servicing Agreement may exercise their option to purchase the Mortgage Loans and
any other property remaining in the Trust and cause the termination of the Trust
in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-18-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-18-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:__________________________________
AUTHORIZED SIGNATORY
A-18-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address of assignee
_______________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-18-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-18-10
EXHIBIT A-19
[FORM OF CLASS X CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, ANY UNDERWRITER, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A
BUYER WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR
HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
A-19-1
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS AN INVESTMENT
UNIT COMPRISED OF FIFTEEN COMPONENT INTERESTS, EACH OF WHICH IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CLASS X CERTIFICATE WAS ISSUED ON APRIL __, 1999 AND IS TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE OF THIS CERTIFICATE IS 2.8334% OF THE ORIGINAL
NOTIONAL PRINCIPAL AMOUNT OF THIS CERTIFICATE. ASSUMING THAT THIS CERTIFICATE
PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS BASED ON CERTAIN ASSUMPTIONS USED
IN PRICING THE CERTIFICATES AND THAT NONE OF THE STATED INTEREST IS TREATED AS
"QUALIFIED STATED INTEREST", THE FOLLOWING INFORMATION WOULD BE APPLICABLE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL NOTIONAL PRINCIPAL AMOUNT OF
THIS CERTIFICATE WOULD BE APPROXIMATELY ______%, (II) THE YIELD TO MATURITY OF
THIS CERTIFICATE FOR PURPOSES OF COMPUTING OID WOULD BE APPROXIMATELY _______%
PER ANNUM, COMPOUNDED MONTHLY, AND (III) THE TOTAL AMOUNT OF OID ALLOCABLE TO
THE INITIAL ACCRUAL PERIOD (APRIL __, 1999 TO MAY 15, 1999) FOR PURPOSES OF
COMPUTING OID ON PRINCIPAL AMOUNT OF THIS CERTIFICATE WOULD BE APPROXIMATELY
______%. THE METHOD USED TO CALCULATE THE YIELD TO MATURITY AND THE AMOUNT OF
OID ALLOCABLE TO THE INITIAL ACCRUAL PERIOD IS THE EXACT METHOD. THE ACTUAL
YIELD TO MATURITY AND OID ON THIS CERTIFICATE MAY DIFFER FROM THE PROJECTED
AMOUNTS. THE PREPAYMENT ASSUMPTION USED IN CALCULATING THE YIELD TO MATURITY IS
0% CPR AND THE PAYMENT OF THE BALLOON PAYMENT ON THE HYPERAMORTIZATION DATE IN
THE CASE OF THE HYPERAMORTIZATION LOANS. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT THE ASSUMED RATE OR ANY OTHER RATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-19-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-FNV1
INITIAL PASS-THROUGH RATE: 0.98% INITIAL CERTIFICATE NOTIONAL AMOUNT OF
THIS CLASS X CERTIFICATE: $632,094,383
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES,
AGREEMENT: AS OF APRIL 1, 1999 L.P.
CUT-OFF DATE: APRIL 1, 1999 INITIAL SPECIAL SERVICER: BANC ONE
MORTGAGE CAPITAL MARKETS, LLC
CLOSING DATE: APRIL 21, 1999 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
MAY 15, 1999
AGGREGATE CERTIFICATE NOTIONAL CUSIP NO. [_________]
AMOUNT OF THE CLASS X
CERTIFICATES AS OF THE CLOSING DATE: NO. 1
$632,094,383
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cede & Co. is the registered owner of the interest evidenced
by this Certificate in the Class X Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Collection Account, the
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Certificate
Notional Amount of the Class X Certificates. The Certificates are designated as
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 and are issued in nineteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
A-19-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Notional Amount of this Certificate immediately prior to each
Distribution Date. Interest allocated to this Certificate on any Distribution
Date will be in an amount due to this Certificate's pro rata share of the amount
to be distributed on the Certificates of this Class as of such Distribution
Date, with a final distribution to be made upon retirement of this Certificate
as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Trustee or the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately
A-19-4
available funds to the account specified by the Certificateholder, at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
will have provided the Trustee with wiring instructions on or before the related
Record Date, or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance and in any whole
dollar denomination in excess thereof. The remaining Certificates will initially
be issued in denominations of $100,000 initial Certificate Principal Balance or
Certificate Notional Amount, as applicable and in any whole dollar denomination
in excess thereof. Each Class of Certificates other than the Residual
Certificates will be represented by one or more Certificates registered in the
name of Cede & Co., as nominee of the DTC. No Certificate Owner will be entitled
to receive a Definitive Certificate representing such interest, except under the
limited circumstances described in the Pooling and Servicing Agreement. The
Residual Certificates will be issued in fully registered, certificated form in
minimum percentage interests of 10% and in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange 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.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the
A-19-5
owner hereof for all purposes, and neither the Depositor, the Trustee, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earlier of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan held by the Trust and (B)
the disposition of the last REO Property held by the Trust and (ii) the sale of
all Mortgage Loans and any REO Properties held by the Trust in accordance with
Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as
Trustee under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-19-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:___________________________________
AUTHORIZED OFFICER
Dated: April __, 1999
A-19-7
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
BY:___________________________________
AUTHORIZED SIGNATORY
A-19-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:________________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
______________________________________
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
A-19-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-19-10
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
April __, 1999
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and
Servicing Agreement") relating to Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the foregoing documents, the loan number set forth in the
Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in such documents, and (d) each Mortgage Note has been
endorsed as provided in clause (i) of the definition of "Mortgage File". The
Trustee makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any such documents contained in each Mortgage
File or any of the Mortgage Loans identified in the Mortgage Loan Schedule, or
(ii) the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:___________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF FINAL CERTIFICATION OF TRUSTEE
April __, 1999
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and
Servicing Agreement") relating to Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clauses (i), (ii), (iii), (ix), (xii) (to the extent it relates to
the foregoing) and (xiii) are in its possession, (b) documents delivered to it
or a Custodian as part of the related Mortgage File have been reviewed by it or
such Custodian and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, the street
address of the Mortgaged Property (but not the zip code) and the name of the
Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in the documents in the Mortgage
File, and (d) each Mortgage Note has been endorsed as provided in clauses (i) of
the definition of "Mortgage File". The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File or any of the Trustee Mortgage
Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:___________________________
Name:
Title:
B-2-1
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: Norwest Bank Minnesota, National Association
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Mortgage Document Custody (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial
Xxxxxx Pass-Through Certificates, Series 1999-FNV1
--------------------------------------------------
Date: [____________, ____, ___]
In connection with the administration of the Mortgage Loans held by you
as Trustee under the Pooling and Servicing Agreement dated as of April 1, 1999,
by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, AMRESCO Services,
L.P., as Master Servicer, Banc One Mortgage Capital Markets LLC, as Special
Servicer and Norwest Bank Minnesota, National Association, as Trustee (the
"Pooling and Servicing Agreement"), the undersigned hereby requests a release of
the Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Property Name:
Address:
Loan No.:
Reason for requesting file:
____1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan have been or will be,
following the [Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Collection Account or the Distribution
Account pursuant to the Pooling and Servicing Agreement.)
____2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the Purchase
Price has been credited to the Distribution Account pursuant to the
Pooling and Servicing Agreement.)
____3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
____4. The Mortgage Loan is being foreclosed.
____5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in
C-1
which case the Mortgage File will be retained by us permanently), when no longer
required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special]
Servicer]
By:__________________________________
Name:
Title:
X-0
XXXXXXX X-0
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
To: Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 (the "Certificates")
Dear Sirs:
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
or Notional Amount as of April __, 1999 (the "Closing Date") of $__________. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), to be dated as of April 1, 1999, among
Xxxxxx Xxxxxxx Capital I Inc. as depositor (the "Depositor"), AMRESCO Services,
L.P., as master servicer, Banc One Mortgage Capital Markets LLC, as special
servicer and Norwest Bank Minnesota, National Association, as trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept 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:______________________________
D-1-1
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
To: Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to __________________ (the "Transferee") of
Class __________ Certificates having an initial Principal Balance or Notional
Amount as of April __, 1999 (the "Closing Date") of $____________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, to be
dated as of April 1, 1999 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor (the "Depositor"), AMRESCO Services, L.P.,
as master servicer, Banc One Mortgage Capital Markets LLC, as special servicer,
and Norwest Bank Minnesota, National Association, as trustee. All capitalized
terms used but not otherwise defined herein shall have the respective 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" (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 of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates 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.
D-2-1
2. The Transferee has been furnished with all information
regarding (a) the Transferred 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 Transferred Certificates, that it has
requested.
Very truly yours,
______________________________________
(Transferor)
By:___________________________________
Name:_________________________________
Title:________________________________
X-0-0
XXXXX 0 XX XXXXXXX X-0X
-----------------------
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 [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates being
transferred (the "Transferred Certificates") 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 Certificates (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 $______________________1 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) 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), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
____ 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, as amended.
____ 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
-------------
1 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.
D-2-3
which is subject to supervision by the insurance commissioner or a similar
official or agency of a State, U.S. territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
____ 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, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificates are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates 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
D-2-4
Transferred Certificates 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:______________________________
X-0-0
XXXXX 0 XX XXXXXXX X-0X
-----------------------
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 [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") 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 Certificates (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, as amended ("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, as
amended, 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 of 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.
D-2-6
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates 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 by the undersigned, the Transferee's purchase
of the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
________________________________________
Print Name of Transferee or Advisor
By:_____________________________________
Name_______________________________
Title:_____________________________
Date:______________________________
IF AN ADVISER:
________________________________________
Print Name of Transferee
Date:___________________________________
D-2-7
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
To: Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates Series 1999-FNV1
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________________ (the "Transferor") to _____________________ (the
"Transferee") of Class ____ Certificates having an initial Principal Balance or
Notional Amount as of April __, 1999 (the "Closing Date") of $___________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, to be
dated as of April 1, 1999 (the "Pooling and Servicing Agreement") among Xxxxxx
Xxxxxxx Capital I Inc., as depositor (the "Depositor"), AMRESCO Services, L.P.,
as master servicer, Banc One Mortgage Capital Markets LLC, as special servicer
and Norwest Bank Minnesota, National Association, as trustee. All capitalized
terms used but not otherwise defined herein shall have the respective 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 Certificates
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 Class of
Certificates to which the Transferred Certificates belong has not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated to so
register or qualify the Class of Certificates to which the Transferred
Certificates belong, and (c) no Transferred Certificate may be resold
or transferred unless it is (i) registered pursuant to the Securities
Act and registered or qualified pursuant 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) a certificate from the
Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit ___ to the Pooling and Servicing Agreement and
a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit ___ or as Exhibit
___ to the Pooling and Servicing Agreement; or (C) an opinion of
counsel satisfactory to the Trustee with respect to the availability of
such exemption from registration under the Securities Act, together
with copies of the written certification(s) from the
D-2-8
transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance
with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS 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 OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
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 with respect to any Certificate, any interest in
any Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Certificate, any interest in any Certificate or any
other similar security, which (in the case of any of the acts described
in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of
the Securities Act or any state securities law or would require
registration or qualification of the Transferred Certificates 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, any interest in any
Certificate or any other similar security.
6. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
D-2-9
7. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee 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 Transferred
Certificate; 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
investment and can afford a complete loss of such investment.
Very truly yours,
______________________________________________
(Transferee)
By:___________________________________________
Name_______________________________________
Title:_____________________________________
D-2-10
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 (the "Certificates")
Dear Sirs:
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 or Notional Amount as of April __, 1999 (the "Closing Date") of
$____________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of April
1, 1999, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
AMRESCO Services, L.P., as master servicer, Banc One Mortgage Capital Markets
LLC, as special servicer and Norwest Bank Minnesota, National Association, as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor
and the Trustee, 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)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated to so register or qualify the Certificates and (c) no
interest in the Certificates may be sold or transferred unless (i) such
Certificates are registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities
laws or (ii) such interest sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Owner desiring to effect such transfer has received either (A) a
certification from such Certificate Owner's prospective transferee
(substantially in the form 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, 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.
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 3.3 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS 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
D-3-1
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 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
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 an 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.
6. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and (d)
all related matters, that it has requested.
7. The Transferee is an institutional "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:_____________________________________
D-3-2
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 (the "Certificates")
Dear Sirs:
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 or Notional Amount as of April __, 1999 (the "Closing Date")
of $________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of April 1, 1999,
among Xxxxxx Xxxxxxx Capital I Inc. as depositor (the "Depositor"), AMRESCO
Services, L.P., as master servicer, Banc One Mortgage Capital Markets LLC, as
special servicer and Norwest Bank Minnesota, National Association, as trustee.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, and for the benefit of the Depositor and the
Trustee, 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 or any
interest therein may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to
effect such transfer has received either (A) a certification from such
Certificate Owner's prospective transferee (substantially in the form
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, 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.
D-3-3
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 3.3 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS 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 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
5. 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 Transferred Certificate, that it has
requested.
Very truly yours,
______________________________________________
(Transferee)
By:___________________________________________
Name_______________________________________
Title:_____________________________________
X-0-0
XXXXX 0 XX XXXXXXX X-0X
-----------------------
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 for the benefit of the Depositor and the Trustee, as
Certificate Registrar, with respect to the commercial 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) 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),
Massachusetts or similar 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.
D-3-5
____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
____ 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 Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as
amended.
____ 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, as
amended.
D-3-6
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificate are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee
may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No 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:___________________________________
X-0-0
XXXXX 0 XX XXXXXXX X-0X
-----------------------
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 for the benefit of the Depositor and the Trustee, with
respect to the commercial 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, as amended ("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, as
amended, 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 Company, 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).
D-3-8
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying
and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No 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:__________________________________
IF AN ADVISER:
________________________________________
Print Name of Transferee
Date:___________________________________
D-3-9
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
[Date]
To: Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-FNV1 (the "Certificates")
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by ________________ (the "Transferor") to __________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of April 1, 1999 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor,
AMRESCO Services, L.P., as master servicer, Banc One Mortgage Capital Markets
LLC, as special servicer and Norwest Bank Minnesota, National Association, as
trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual 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 F. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
E-1
___________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
E-2
EXHIBIT F
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
__________________________, being first duly sworn, deposes and says
that:
1. He/She is the ___________________________ of ___________________
(the prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-FNV1, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates"), a ___________________ duly organized and validly
existing under the laws of _________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement pursuant to which the Residual Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.)
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (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 non-Permitted 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 a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) 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. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual 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.)
F-1
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is ________________.
8. The Transferee has reviewed the provisions of Section 3.3(f) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (iv)(A) of Section 3.3(f)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (iv)(B) of Section 3.3(f) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 3.3(f)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E to the Pooling and
Servicing Agreement in which it will represent and warrant, among other things,
that it is not transferring the Residual Certificates to impede the assessment
or collection of any tax and that it has at the time of such transfer conducted
a reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-l(c)(4)(i) and has
satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includable in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________ and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ___ day of _______________, 199_.
F-2
[NAME OF TRANSFEREE]
By:________________________________
[Name of Officer]
[Title of Officer]
____________________________
[Corporate Seal]
ATTEST:
____________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ___________________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee
Subscribed and sworn before me this ___ day of _________________, 199_.
____________________________
NOTARY PUBLIC
COUNTY OF_______________________
STATE OF________________________
My Commission expires the ______
day of____________, 19___.
F-3
EXHIBIT G-1
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
[Available from Trustee]
G-1-1
EXHIBIT G-2
FORM OF SPECIALLY SERVICED ASSET REPORT
[Available from Special Servicer]
G-2-1
EXHIBIT H-1
COMPARATIVE FINANCIAL STATUS REPORT
[Available from Master Servicer]
H-1-1
EXHIBIT H-2
COMPARATIVE FINANCIAL STATUS REPORT
[Available from Master Servicer]
H-2-1
EXHIBIT H-3
HISTORICAL LOAN MODIFICATION REPORT
[Available from Master Servicer]
H-3-1
EXHIBIT H-4
HISTORICAL LOSS ESTIMATE REPORT
[Available from Master Servicer]
X-0-0
XXXXXXX X-0
REO STATUS REPORT
[Available from Master Servicer]
X-0-0
XXXXXXX X-0
WATCH LIST
[Available from Master Servicer]
H-6-1
EXHIBIT H-7
OPERATING STATEMENT ANALYSIS
[Available from Master Servicer]
H-7-1
EXHIBIT H-8
NOI ADJUSTMENT WORKSHEET
[Available from Master Servicer]
H-8-1
EXHIBIT H-9
CSSA REPORTS
X-0-0
XXXXXXX X-00
CSSA REPORTS
H-10-1
EXHIBIT H-11
CSSA REPORTS
Subject to the terms of the Pooling and Servicing Agreement, the Class
A-1 and A-2 Certificates will initially be issued in denominations of $25,000
initial Certificate Principal Balance and in any whole dollar denomination in
excess thereof. The Class B Certificates will initially be issued in
denominations of $50,000 initial Certificate Principal Balance, as applicable
and in any whole dollar denomination in excess thereof. The remaining
Certificates will initially be issued in denominations of $100,000 initial
Certificate Principal Balance or Certificate Notional Amount and in any whole
dollar denomination in excess thereof. Each Class of Certificates other than the
Residual Certificates will be represented by one or more Certificates registered
in the name of Cede & Co., as nominee of the DTC. No Certificate Owner will be
entitled to receive a Definitive Certificate representing such interest, except
under the limited circumstances described in the Pooling and Servicing
Agreement. The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
H-11-1