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FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
FIRST UNION NATIONAL BANK
Master Servicer
and
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
and
XXXXX FARGO BANK MINNESOTA, N.A.
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of February 10, 2002
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$728,324,739
Commercial Mortgage Pass-Through Certificates
Series 2002-C1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms...............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans................................
SECTION 2.02 Acceptance of the Trust Fund by Trustee.....................
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches
of Representations and Warranties.........................
SECTION 2.04 Representations and Warranties of Depositor.................
SECTION 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC I by
Trustee...................................................
SECTION 2.06 Execution, Authentication and Delivery of Class R-I
Certificates..............................................
SECTION 2.07 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee....................................
SECTION 2.08 Execution, Authentication and Delivery of REMIC II
Certificates..............................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans........................
SECTION 3.02 Collection of Mortgage Loan Payments........................
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts......................
SECTION 3.04 Certificate Account, Interest Reserve Account, the
Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Companion
Distribution Account......................................
SECTION 3.05 Permitted Withdrawals From the Certificate Account,
Interest Reserve Account, the Additional Interest
Account and the Distribution Account......................
SECTION 3.06 Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Certificate Account, the Interest Reserve
Account, the Distribution Account, the Companion
Distribution Account, the Additional Interest Account
and the REO Account.......................................
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.....................................
SECTION 3.08 Enforcement of Alienation Clauses...........................
SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required
Appraisals................................................
SECTION 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.....................................................
SECTION 3.11 Servicing Compensation......................................
SECTION 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports...............................
SECTION 3.13 Annual Statement as to Compliance...........................
SECTION 3.14 Reports by Independent Public Accountants...................
SECTION 3.15 Access to Certain Information...............................
SECTION 3.16 Title to REO Property; REO Account..........................
SECTION 3.17 Management of REO Property..................................
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO Properties...
SECTION 3.19 Additional Obligations of Master Servicer and Special
Servicer..................................................
SECTION 3.20 Modifications, Waivers, Amendments and Consents.............
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping..........................
SECTION 3.22 Sub-Servicing Agreements....................................
SECTION 3.23 Representations and Warranties of Master Servicer and
Special Servicer..........................................
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty.........
SECTION 3.25 Designation of Controlling Class Representative.............
SECTION 3.26 Servicing and Administration of the AB Mortgage Loans
and the Companion Loans...................................
SECTION 3.27 Abbey Intercreditor Agreement...............................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERs
SECTION 4.01 Distributions...............................................
SECTION 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File...............................................
SECTION 4.03 P&I Advances................................................
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Certificate Deferred Interest;
Allocation of Appraisal Reduction Amounts.................
SECTION 4.05 Calculations................................................
SECTION 4.06 Use of Agents...............................................
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates............................................
SECTION 5.02 Registration of Transfer and Exchange of Certificates.......
SECTION 5.03 Book-Entry Certificates.....................................
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...........
SECTION 5.05 Persons Deemed Owners.......................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicer and Special
Servicer..................................................
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.......................
SECTION 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer......................................
SECTION 6.04 Resignation of Master Servicer and the Special Servicer.....
SECTION 6.05 Rights of Depositor, the Paying Agent and Trustee in
Respect of Master Servicer and the Special Servicer.......
SECTION 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee and the Paying Agent...............
SECTION 6.07 Depositor, Special Servicer, Paying Agent and Trustee
to Cooperate with Master Servicer.........................
SECTION 6.08 Depositor, Master Servicer, Paying Agent and Trustee
to Cooperate with Special Servicer........................
SECTION 6.09 Designation of Special Servicer by the Controlling Class....
SECTION 6.10 Master Servicer or Special Servicer as Owner of a
Certificate...............................................
SECTION 6.11 The Controlling Class Representative........................
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default...........................................
SECTION 7.02 Trustee to Act; Appointment of Successor....................
SECTION 7.03 Notification to Certificateholders..........................
SECTION 7.04 Waiver of Events of Default.................................
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default........
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
SECTION 8.01 Duties of Trustee and the Paying Agent......................
SECTION 8.02 Certain Matters Affecting Trustee and the Paying Agent......
SECTION 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.............
SECTION 8.04 Trustee or Paying Agent May Own Certificates................
SECTION 8.05 Fees and Expenses of Trustee and the Paying Agent;
Indemnification of Trustee and the Paying Agent...........
SECTION 8.06 Eligibility Requirements for Trustee and Paying Agent.......
SECTION 8.07 Resignation and Removal of Trustee and the Paying Agent.....
SECTION 8.08 Successor Trustee or Paying Agent...........................
SECTION 8.09 Merger or Consolidation of Trustee..........................
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee...............
SECTION 8.11 Appointment of Custodians...................................
SECTION 8.12 Appointment of Authenticating Agents........................
SECTION 8.13 Access to Certain Information...............................
SECTION 8.14 Appointment of REMIC Administrators.........................
SECTION 8.15 Representations, Warranties and Covenants of Trustee........
SECTION 8.16 Representations, Warranties and Covenants of the Paying
Agent.....................................................
SECTION 8.17 Reports to the Securities and Exchange Commission;
Available Information.....................................
SECTION 8.18 Maintenance of Mortgage File................................
SECTION 8.19 Companion Paying Agent......................................
SECTION 8.20 Companion Register..........................................
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans............................................
SECTION 9.02 Additional Termination Requirements.........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration........................................
SECTION 10.02 Grantor Trust Administration................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment...................................................
SECTION 11.02 Recordation of Agreement; Counterparts......................
SECTION 11.03 Limitation on Rights of Certificateholders..................
SECTION 11.04 Governing Law...............................................
SECTION 11.05 Notices.....................................................
SECTION 11.06 Severability of Provisions..................................
SECTION 11.07 Grant of a Security Interest................................
SECTION 11.08 Xxxxxx Act..................................................
SECTION 11.09 Successors and Assigns; Beneficiaries.......................
SECTION 11.10 Article and Section Headings................................
SECTION 11.11 Notices to Rating Agencies..................................
SECTION 11.12 Complete Agreement..........................................
EXHIBITS
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Exhibit Description Exhibit No. Section Reference
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Form of Class A-1 Certificate A-1 Section 1.01 Definition
of "Class A-1 Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition
of "Class A-2 Certificate"
Form of Class IO-I Certificate A-3 Section 1.01 Definition
of "Class IO-I Certificate"
Form of Class IO-II Certificate A-4 Section 1.01 Definition
of "Class IO-II Certificate"
Form of Class B Certificate A-5 Section 1.01 Definition
of "Class B Certificate"
Form of Class C Certificate A-6 Section 1.01 Definition
of "Class C Certificate"
Form of Class D Certificate A-7 Section 1.01 Definition
of "Class D Certificate"
Form of Class E Certificate A-8 Section 1.01 Definition
of "Class E Certificate"
Form of Class F Certificate A-9 Section 1.01 Definition
of "Class F Certificate"
Form of Class G Certificate A-10 Section 1.01 Definition
of "Class G Certificate"
Form of Class H Certificate A-11 Section 1.01 Definition
of "Class H Certificate"
Form of Class J Certificate A-12 Section 1.01 Definition
of "Class J Certificate"
Form of Class K Certificate A-13 Section 1.01 Definition
of "Class K Certificate"
Form of Class L Certificate A-14 Section 1.01 Definition
of "Class L Certificate"
Form of Class M Certificate A-15 Section 1.01 Definition
of "Class M Certificate"
Form of Class N Certificate A-16 Section 1.01 Definition
of "Class N Certificate"
Form of Class O Certificate A-17 Section 1.01 Definition
of "Class O Certificate"
Form of Class R-I Certificate A-18 Section 1.01 Definition
of "Class R-I Certificate"
Form of Class R-II Certificate A-19 Section 1.01 Definition
of "Class R-II Certificate"
Form of Class Z Certificate A-20 Section 1.01 Definition
of "Class Z Certificate"
Mortgage Loan Schedule B Section 1.01 Definition
of "Mortgage Loan Schedule"
Schedule of Exceptions to C-1 Section 2.02(a)
Mortgage File Delivery
Form of Custodial Certification C-2 Section 2.02(b)
Form of Master Servicer Request D-1 Section 1.01 Definition
for Release of "Request for
Release";
Section 2.03(b);
Section 3.10(a); and
Section 3.10(b)
Form of Special Servicer D-2 Section 1.01 Definition
Request for Release of "Request for
Release"; Section 3.10(b)
Calculation of NOI/Debt Service E Section 1.01 Definition
Coverage Ratios of "Net Operating Income"
Form of Updated Collection F Section 1.01 Definition
Report of "Updated Collection
Report"
Form of Transferor Certificate G-1 Section 5.02(b)
Form of Transferee Certificate G-2 Section 5.02(b)
for QIBs
Form of Transferee Certificate G-3 Section 5.02(b)
for Non-QIBs
Form of Transferee Certificate H Section 5.02(c)
Form of Transfer Affidavit and I-1 Section 5.02(d)(i)(2)
Agreement Pursuant to Section
5.02(d)(i)(2)
Form of Transferor Certificate I-2 Section 5.02(d)(i)(4)
Pursuant to Section
5.02(d)(i)(4)
Form of Notice and J-1 Section 6.09
Acknowledgment
Form of Acknowledgment of J-2 Section 6.09
Proposed Special Servicer
Form of CMSA Property File K Section 1.01 Definition
Report of "CMSA Property File
Report"
Form of Comparative Financial L Section 1.01 Definition
Status Report of "Comparative
Financial Status Report"
Form of REO Status Report M Section 1.01 Definition
of "REO Status Report"
Form of Watch List N Section 1.01 Definition
of "Watch List"
Form of Delinquent Loan Status O Section 1.01 Definition
Report of "Delinquent Loan
Status Report"
Form of Historical Loan P Section 1.01 Definition
Modification Report of "Historical Loan
Modification Report"
Form of Historical Liquidation Q Section 1.01 Definition
Report of "Historical
Liquidation Report"
Form of NOI Adjustment Worksheet R Section 1.01 Definition
of "NOI Adjustment
Worksheet"
Form of Operating Statement S Section 1.01 Definition
Analysis Report of "Operating Statement
Analysis Report"
Form of Interim Delinquent Loan T Section 1.01 Definition
Status Report of "Interim Delinquent
Loan Status Report"
Form of CMSA Loan Periodic U Section 1.01 Definition
Update File of "CMSA Loan Periodic
Update File"
Form of Certificateholder V-1 Section 3.15
Confirmation Certificate
Request by Beneficial Holder
Form of Prospective Purchaser V-2 Section 3.15
Certificate
Form of CMSA Bond File Report W Section 1.01 Definition
of "CMSA Bond File
Report"
Form of CMSA Collateral Summary X Section 1.01 Definition
File of "CMSA Collateral
Summary File"
Form of CMSA Financial File Y Section 1.01 Definition
of "CMSA Financial File"
Form of CMSA Loan Setup File Z Section 1.01 Definition
of "CMSA Loan Setup File"
Initial Companion Holder AA Section 8.20
Class IO-II Reference Rate BB Section 1.01 Definition
of "Class IO-II
Reference Rate"
Form of Purchase Option Notice CC Section 3.18
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of February 10, 2002, among FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, XXXXX FARGO BANK
MINNESOTA, N.A., as Trustee, and LASALLE BANK NATIONAL ASSOCIATION, as Paying
Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder,
the primary assets of which will be the Mortgage Loans.
As provided herein, the Paying Agent on behalf of the Trustee will
elect to treat the segregated pool of assets consisting of all of the Mortgage
Loans (exclusive of that portion of the interest payments thereon that
constitute Additional Interest) and certain other related assets subject to this
Agreement as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC I." The Class R-I Residual Interest will
represent the sole class of "residual interests" in REMIC I for purposes of the
REMIC Provisions under federal income tax law, and will be represented by the
Class R-I Certificates.
As provided herein, the Paying Agent on behalf of the Trustee will
elect to treat the segregated pool of assets consisting of all of the REMIC I
Regular Interests as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC II". The Class R-II
Certificates will evidence the sole class of "residual interests" in REMIC II
for purposes of the REMIC Provisions under federal income tax law. For federal
income tax purposes, each Class of the Regular Certificates will be designated
as a separate "regular interest" in REMIC II for purposes of the REMIC
Provisions under federal income tax law.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), the Corresponding Components of the Class IO Certificates and the
Original Class Principal Balance for each Class of Sequential Pay Certificates
(the "Corresponding Certificates").
Corresponding Original Class Corresponding Corresponding Components of
Certificates Principal Balance REMIC I Regular Class IO Certificates (1)
Interests (1)
Class A-1 $131,057,000 LA-1 IO-A-1
Class A-2 $430,663,000 XX-0-0 XX-X-0-0
XX-0-0 XX-X-0-0
Class B $26,402,000 LB IO-B
Class C $32,774,000 LC IO-C
Class D $9,104,000 LD IO-D
Class E $8,194,000 LE IO-E
Class F $12,746,000 LF IO-F
Class G $10,014,000 LG IO-G
Class H $14,567,000 LH IO-H
Class J $14,566,000 LJ IO-J
Class K $5,463,000 LK IO-K
Class L $5,462,000 LL IO-L
Class M $7,283,000 LM IO-M
Class N $3,642,000 LN IO-N
Class O $16,387,739 LO IO-O
(1) The REMIC I Regular Interest and the Components of the Class
IO Certificates that correspond to any particular Class of Sequential Pay
Certificates also correspond to each other and, accordingly, constitute the
"Corresponding REMIC I Regular Interest" and the "Corresponding Components"
respectively, with respect to each other.
The portion of the Trust Fund consisting of: (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held from time to
time in the Additional Interest Account that represent Additional Interest shall
be treated as a grantor trust (the "Grantor Trust") for federal income tax
purposes. As provided herein, the Paying Agent on behalf of the Trustee shall
take all actions necessary to ensure that the portion of the Trust Fund
consisting of the Grantor Trust Assets maintains its status as a "grantor trust"
under federal income tax law and not be treated as part of REMIC I or REMIC II.
Four mortgage loans (the "Companion Loans") with an aggregate
original principal amount of $1,649,723.43 are not part of the Trust Fund but
are secured by corresponding Mortgages that secure related Mortgage Loans (each
an "AB Mortgage Loan" and collectively, the "AB Mortgage Loans") that are part
of the Trust Fund. As and to the extent provided herein, the Companion Loans
will be serviced and administered in accordance with this Agreement. Amounts
attributable to the Companion Loans will not be assets of the Trust Fund, and
will be owned by the Companion Holder.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Paying
Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
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Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Abbey Intercreditor Agreement": That certain Intercreditor
Agreement, dated January 2002, between First Union National Bank, as mortgage
lender, and Capri Select Income, LLC, as mezzanine lender.
"Abbey Mezzanine Lender": The "Mezzanine Lender" as defined in the
Abbey Intercreditor Agreement.
"AB Mortgage Loan": Each Mortgage Loan identified on the Mortgage
Loan Schedule as loan number 75, 96, 97, and 106.
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates (other than the Class IO Certificates) for any Distribution Date,
one month's interest at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued for the related Interest
Accrual Period on the related Class Principal Balance outstanding immediately
prior to such Distribution Date; and, with respect to the Class IO-I and Class
IO-II Certificates for any Distribution Date, the sum of the Accrued Component
Interest for the related Interest Accrual Period for all of their respective
Components for such Distribution Date. Accrued Certificate Interest shall be
calculated on a 30/360 Basis and, with respect to any Class of Regular
Certificates for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to each Component of the
Class IO-I and Class IO-II Certificates for any Distribution Date, one month's
interest at the Class IO-I Strip Rate or Class IO-II Strip Rate applicable to
such Component for such Distribution Date, accrued on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360 Basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on
the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Account": The segregated account or accounts
created and maintained by the Paying Agent pursuant to Section 3.04(d) which
shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in trust for
the registered holders of First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-C1, Additional
Interest Account." The Additional Interest Account shall not be an asset of
REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per annum rate at
which such Mortgage Loan accrues interest after the Anticipated Repayment Date
(in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d) and
4.03(d), interest payable to the Master Servicer and the Trustee on Advances (to
the extent not offset by Penalty Interest and late payment charges) and amounts
payable to the Special Servicer in connection with inspections of Mortgaged
Properties required pursuant to the first sentence of Section 3.12(a) (and not
otherwise paid from Penalty Interest and late payment charges), as well as
(without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (viii), (ix), (xi), (xii), (xiii) and
(xix) of Section 3.05(a) out of general collections on the Mortgage Loans and
any REO Properties on deposit in the Certificate Account or (y) pursuant to
clause (ii) or any of clauses (iv) through (vi) of Section 3.05(b) out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Distribution Account; provided that for purposes of the allocations
contemplated by Section 4.04 no such expense shall be deemed to have been
incurred by the Trust Fund until such time as the payment thereof is actually
made from the Certificate Account or the Distribution Account, as the case may
be.
"Additional Yield Amount": With respect to any Distribution Date and
the Regular Certificates (other than the Class IO Certificates and any Excluded
Class) entitled to distributions of principal pursuant to Section 4.01(a) on
such Distribution Date, provided that a Yield Maintenance Charge and/or
Prepayment Premium was actually collected on a Mortgage Loan or an REO Loan
during the related Collection Period, the product of (a) such Yield Maintenance
Charge and/or Prepayment Premium multiplied by (b) a fraction, which in no event
will be greater than one, the numerator of which is equal to the positive
excess, if any, of (i) the Pass-Through Rate for the Regular Certificates then
receiving principal over (ii) the related Discount Rate, and the denominator of
which is equal to the positive excess, if any, of (i) the Mortgage Rate for such
Mortgage Loan or REO Loan, as the case may be, over (ii) the related Discount
Rate, multiplied by (c) a fraction, the numerator of which is equal to the
amount of principal distributable on such Regular Certificates on such
Distribution Date pursuant to Section 4.01(a), and the denominator of which is
equal to the Principal Distribution Amount for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the Mortgage Rate for such ARD Loan
will increase as specified in the related Mortgage Note (other than as a result
of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer, prepared in accordance with 12 CFR ss.225.62
and conducted in accordance with the standards of the American Appraisal
Institute by an Independent Appraiser, which Independent Appraiser shall be
advised to take into account the factors specified in Section 3.09(a), any
available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider.
"Appraisal Reduction Amount": The excess, if any, of (a) the sum of,
as calculated by the Master Servicer as of the first Determination Date
immediately succeeding the Master Servicer obtaining knowledge of the occurrence
of the Required Appraisal Date if no new Required Appraisal (or letter update or
internal valuation) is required or the date on which a Required Appraisal (or
letter update or internal valuation, if applicable) is obtained and each
Determination Date thereafter so long as the related Mortgage Loan remains a
Required Appraisal Mortgage Loan (without duplication), (i) the Stated Principal
Balance of the subject Required Appraisal Mortgage Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer or the Trustee, all
unpaid interest on the Required Appraisal Mortgage Loan through the most recent
Due Date prior to such Determination Date at a per annum rate equal to the
related Net Mortgage Rate (exclusive of any portion thereof that constitutes
Additional Interest), (iii) all accrued but unpaid Servicing Fees and all
accrued but unpaid Additional Trust Fund Expenses in respect of such Required
Appraisal Mortgage Loan, (iv) all related unreimbursed Advances (plus accrued
interest thereon) made by or on behalf of the Master Servicer or the Trustee
with respect to such Required Appraisal Mortgage Loan and (v) all currently due
and unpaid real estate taxes and unfunded improvement reserves and assessments,
insurance premiums, and, if applicable, ground rents in respect of the related
Mortgaged Property over (b) an amount equal to the sum of (i) the Required
Appraisal Value and (ii) all escrows, reserves and letters of credit held for
the purposes of reserves (provided such letters of credit may be drawn upon for
reserve purposes under the related Mortgage Loan document) held with respect to
such Required Appraisal Mortgage Loan. If the Special Servicer fails to obtain a
Required Appraisal (or letter update or internal valuation, if applicable)
within the time limit described in Section 3.09(a), the Appraisal Reduction
Amount for the related Required Appraisal Mortgage Loan will equal 25% of the
outstanding principal balance of such Required Appraisal Mortgage Loan, to be
adjusted upon receipt of a Required Appraisal or letter update or internal
valuation, if applicable. The Master Servicer may consult with the Special
Servicer, who agrees to cooperate with the Master Servicer, regarding its
calculation, if necessary.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal (or letter update
or internal valuation, if applicable) that is contained in the related Servicing
File.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage
Loan for its Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full and no other Liquidation Event has occurred in respect thereof on
or before such Stated Maturity Date) and for any Due Date thereafter as of which
such Mortgage Loan remains outstanding and part of the Trust Fund, the Periodic
Payment of principal and/or interest deemed to be due in respect thereof on such
Due Date that would have been due in respect of such Mortgage Loan on such Due
Date if the related Mortgagor had been required to continue to pay principal in
accordance with the amortization schedule, if any, and to accrue interest at the
Mortgage Rate, in effect on the Closing Date and without regard to the
occurrence of its Stated Maturity Date. With respect to any REO Loan, for any
Due Date therefor as of which the related REO Property remains part of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to be due in
respect thereof on such Due Date that would have been due in respect of the
predecessor Mortgage Loan on such Due Date had it remained outstanding (or, if
the predecessor Mortgage Loan was a Balloon Mortgage Loan and such Due Date
coincides with or follows what had been its Stated Maturity Date, the Assumed
Scheduled Payment that would have been deemed due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Paying Agent).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Certificate Account and the Distribution
Account as of the close of business on the related Determination Date and the
amounts collected by or on behalf of the Master Servicer as of the close of
business on such Determination Date and required to be deposited in the
Certificate Account, (ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account
during the month of such Distribution Date, on or prior to the P&I Advance Date
in such month, pursuant to Section 3.16(c), (iv) the aggregate amount deposited
by the Master Servicer in the Certificate Account for such Distribution Date
pursuant to Section 3.19 in connection with Prepayment Interest Shortfalls, and
(v) for each Distribution Date occurring in March, the aggregate of the Interest
Reserve Amounts in respect of each Interest Reserve Loan deposited into the
Distribution Account pursuant to Section 3.05(d), net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this definition that
represents one or more of the following: (i) collected Periodic Payments that
are due on a Due Date following the end of the related Collection Period, (ii)
any amounts payable or reimbursable to any Person from the (A) Certificate
Account pursuant to clauses (ii)-(xv), (xix) and (xx) of Section 3.05(a) or (B)
the Distribution Account pursuant to clauses (ii) - (vi) of Section 3.05(b),
(iii) Prepayment Premiums and Yield Maintenance Charges, (iv) Additional
Interest, (v) with respect to the Distribution Date occurring in February of
each year and in January of each year that is not a leap year, the Interest
Reserve Amounts with respect to the Interest Reserve Loans to be withdrawn from
the Certificate Account and deposited in the Interest Reserve Account in respect
of such Distribution Date and held for future distribution pursuant to Section
3.04(c) and (vi) any amounts deposited in the Certificate Account or the
Distribution Account in error.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Scheduled Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower Reserve Agreement": With respect to any Mortgage Loan, the
related borrower reserve agreement, replacement reserve agreement or similar
agreement executed by the Mortgagor and setting forth the terms and amounts
required to be reserved or escrowed for the related Mortgaged Property, in each
case pledged as additional collateral under the related Mortgage.
"Breach": A breach of any representation or warranty relating to any
Mortgage Loan set forth in the First Union Mortgage Loan Purchase Agreement, the
GACC Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Chicago, Illinois,
Minneapolis, Minnesota, or the cities in which the Corporate Trust Office of the
Trustee (which as of the Closing Date is Columbia, Maryland) or the offices of
the Master Servicer (which as of the Closing Date is Charlotte, North Carolina)
or the offices of the Special Servicer (which as of the Closing Date is San
Francisco, California) or the offices of the Paying Agent (which as of the
Closing Date is Chicago, Illinois) are located, are authorized or obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-C1,
as executed by the Certificate Registrar and authenticated and delivered
hereunder by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "First
Union National Bank, as Master Servicer for Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, on behalf of and in trust for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1."
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates is reduced by the
amount of Mortgage Deferred Interest allocable to such Class on any Distribution
Date.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then current Class
Principal Balance, Class IO-I Notional Amount or Class IO-II Notional Amount, as
applicable, of such Class of Regular Certificates and the denominator of which
is the Original Class Principal Balance or Original Notional Amount of such
Class of Regular Certificates.
"Certificate Notional Amount": With respect to any Class IO-I or
Class IO-II Certificate, as of any date of determination, the then notional
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class IO-I or Class
IO-II Notional Amount, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Certificate for any purpose hereof and, (ii) solely for the purposes of giving
any consent, approval or waiver pursuant to this Agreement that relates to any
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee or the Paying Agent in its respective capacity as such
(except with respect to amendments or waivers referred to in Sections 7.04 and
11.01 hereof and any consent, approval or waiver required or permitted to be
made by the Majority Subordinate Certificateholder or the Controlling Class
Representative and any election, removal or replacement of the Special Servicer
or the Controlling Class Representative pursuant to Section 6.09), any
Certificate registered in the name of the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as
the case may be, or any Certificate registered in the name of any of their
respective Affiliates, shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver that relates to it has been obtained. The
Certificate Registrar shall be entitled to request and rely upon a certificate
of the Depositor, the Master Servicer or the Special Servicer in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1 and Class A-2 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO Certificates": The Class IO-I and Class IO-II Certificates
"Class IO-I Certificate": Any one of the Certificates with a "Class
IO-I" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing the Components and a "regular interest" in REMIC
II for purposes of the REMIC Provisions.
"Class IO-I Notional Amount": With respect to the Class IO-I
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class IO-I Strip Rate": With respect to any Class of Components
(other than Components IO-A-2-2, IO-B, IO-C, IO-D, IO-E and IO-F) for any
Distribution Date, a rate per annum equal to (i) the Weighted Average Net
Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate for
the Corresponding Certificates, and in the case of Components IO-A-2-2, IO-B,
IO-C, IO-D, IO-E and IO-F (i) for any Distribution Date occurring on or before
the Class IO-II Termination Date, (x) the Weighted Average Net Mortgage Rate for
such Distribution Date minus (y) the sum of the Pass-Through Rate for the
Corresponding Certificates for such Distribution Date and the Class IO-II Strip
Rate for such Component for such Distribution Date, and (ii) for any
Distribution Date occurring after the Class IO-II Termination Date, a rate per
annum equal to (x) the Weighted Average Net Mortgage Rate for such Distribution
Date, minus (y) the Pass-Through Rate for the Corresponding Certificates
(provided that in no event shall any Class IO-I Strip Rate be less than zero).
"Class IO-II Certificate": Any one of the Certificates with a "Class
IO-II" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing the IO-II Components and a "regular interest" in
REMIC II for purposes of the REMIC Provisions.
"Class IO-II Components": Each of Component IO-A-2-2, Component
IO-B, Component IO-C, Component IO-D, Component IO-E and Component IO-F.
"Class IO-II Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of the Class IO-II Components.
"Class IO-II Reference Rate": For any Distribution Date, the rate
per annum corresponding to such Distribution Date on Exhibit BB.
"Class IO-II Strip Rate": With respect to each of the Class IO-II
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the Class IO-II Termination Date, (x)
the lesser of (I) the Weighted Average Net Mortgage Rate for such Distribution
Date and (II) the Class IO-II Reference Rate for such Distribution Date minus
0.03%, minus (y) the Pass-Through Rate for the Corresponding Certificates
(provided that in no event shall any Class IO-II Strip Rate be less than zero),
and (ii) for any Distribution Date occurring after the Class IO-II Termination
Date, 0% per annum.
"Class IO-II Termination Date": The Distribution Date in February
2009.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates shall equal the Original Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be reduced by the amount of any distributions of principal
made thereon on such Distribution Date pursuant to Section 4.01 or 9.01, as
applicable, and shall be further reduced by the amount of any Realized Losses
and Additional Trust Fund Expenses allocated thereto on such Distribution Date
pursuant to Section 4.04(a). The Class Principal Balance of any Class of
Sequential Pay Certificates will be increased on any Distribution Date by the
amount of any Certificate Deferred Interest allocated to such Class on such
Distribution Date. Distributions in respect of a reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Sequential Pay Certificates shall not constitute distributions of principal and
shall not result in reduction of the related Class Principal Balance.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a proportionate interest in the Additional
Interest that is described in Section 4.01(b).
"CLF Intercreditor Agreement": Intercreditor Agreement Among Note
Holders, dated as of October 1, 2001, between Capital Lease Funding, L.P., as
lead lender, and First Union National Bank, as co-lender together with (a) with
respect to loan number 75, Intercreditor Agreement Supplement, dated as of
November 14, 2001; (b) with respect to loan number 96, Intercreditor Agreement
Supplement, dated as of November 28, 2001; (c) with respect to loan number 97,
Intercreditor Agreement Supplement, dated as of November 14, 2001; and (d) with
respect to loan number 106, Intercreditor Agreement Supplement, dated as of
November 14, 2001, regarding the administration of each Loan Pair and the
allocation of all amounts received by the holders of the notes constituting any
portion thereof.
"Closing Date": February 25, 2002.
"CMSA": The Commercial Mortgage Securities Association (formerly the
Commercial Real Estate Secondary Market and Securitization Association) or any
successor organization.
"CMSA Bond File": The monthly report in the "CMSA Bond File" format
substantially in the form of and containing the information called for therein,
a form of which is attached hereto as Exhibit W, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The monthly report in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, a form of which is attached hereto as Exhibit X,
or such other form for the presentation of such information as may be approved
from time to time by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File": The monthly report in the "CMSA Financial
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a form of which is attached hereto as
Exhibit Y, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Loan Periodic Update File": The monthly report in the "CMSA
Loan Periodic Update File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a form of which is
attached hereto as Exhibit U, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Loan Setup File": The report in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a form of which is attached hereto as Exhibit Z,
or such other form for the presentation of such information as may be approved
from time to time by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Property File": The monthly report in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for each Mortgaged Property, a form of which is attached hereto as
Exhibit K, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Collection Period": With respect to any Distribution Date, the
period commencing on the day immediately following the Determination Date for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-off Date) and ending on and
including the related Determination Date.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.04(b) and held on behalf of the Companion Holder, which
shall be entitled "LaSalle Bank National Association, as Companion Paying Agent
for the Companion Holder of the Companion Loans." The Companion Distribution
Accounts shall not be assets of the Trust Fund, but instead each Companion
Distribution Account shall be held by the Companion Paying Agent on behalf of
the applicable Companion Holder. Any such account shall be an Eligible Account.
"Companion Holder": With respect to any Companion Loan, the owner of
the Mortgage Note representing such Companion Loan. As of the Closing Date, the
Companion Holder of each Companion Loan is Capital Lease Funding, L.P.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The paying agent appointed pursuant to
Section 8.19.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 8.20.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit L attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgage Loan or the related Mortgaged Property,
calculated as of the last day of the calendar month immediately preceding the
preparation of such report, for (i) each of the three immediately preceding
monthly periods (to the extent such information is available), (ii) the most
current available year-to-date, (iii) the previous two full fiscal years stated
separately, and (iv) the "base year" (representing the original analysis of
information used as of the Cut-off Date), or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally. For the purposes
of the Master Servicer's production of any such report that is required to state
information for any period prior to the Cut-off Date, the Master Servicer may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the related Mortgage Loan Seller.
"Component": Each of Component IO-A-1, Component IO-A-2-1, Component
IO-A-2-2, Component IO-B, Component IO-C, Component IO-D, Component IO-E,
Component IO-F, Component IO-G, Component IO-H, Component IO-J, Component IO-K,
Component IO-L, Component IO-M, Component IO-N and Component IO-O.
"Component IO-A-1": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1 as of any date of
determination.
"Component IO-A-2-1": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2-1 as of any date of
determination.
"Component IO-A-2-2": One of sixteen components of the Class IO-I
Certificates and one of six components of the Class IO-II Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-2 as of any date of determination.
"Component IO-B": One of sixteen components of the Class IO-I
Certificates and one of the six components of the Class IO-II Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LB as of any date of determination.
"Component IO-C": One of sixteen components of the Class IO-I
Certificates and one of the six components of the Class IO-II Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LC as of any date of determination.
"Component IO-D": One of sixteen components of the Class IO-I
Certificates and one of the six components of the Class IO-II Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LD as of any date of determination.
"Component IO-E": One of sixteen components of the Class IO-I
Certificates and one of the six components of the Class IO-II Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LE as of any date of determination.
"Component IO-F": One of sixteen components of the Class IO-I
Certificates and one of the six components of the Class IO-II Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LF as of any date of determination.
"Component IO-G": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG as of any date of
determination.
"Component IO-H": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH as of any date of
determination.
"Component IO-J": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ as of any date of
determination.
"Component IO-K": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LK as of any date of
determination.
"Component IO-L": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LL as of any date of
determination.
"Component IO-M": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM as of any date of
determination.
"Component IO-N": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date of
determination.
"Component IO-O": One of sixteen components of the Class IO-I
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date of
determination.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I Principal Balance of
its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates, (a) which bears the latest alphabetical Class
designation and (b) the Class Principal Balance of which is greater than 25% of
the Original Class Principal Balance thereof; provided, however, that if no
Class of Sequential Pay Certificates satisfies clause (b) above, the Controlling
Class shall be the outstanding Class of Certificates (other than the Residual
Certificates or the Class IO Certificates) bearing the latest alphabetical Class
designation. With respect to determining the Controlling Class, the Class A-1
and Class A-2 Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attn: Corporate Trust Services (CMBS) -- First Union
National Bank Commercial Mortgage Trust, Series 2002-C1.
"Corrected Mortgage Loan": Any Mortgage Loan and, if applicable, any
Companion Loan, that had been a Specially Serviced Mortgage Loan but has ceased
to be a Specially Serviced Mortgage Loan in accordance with the definition of
"Specially Serviced Mortgage Loan".
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates or
any Component of the Class IO Certificates.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": With respect to any Mortgage Loan or Companion Loan,
the Due Date for such Mortgage Loan or Companion Loan in February, 2002.
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan as of the Cut-off Date, after application of all unscheduled
payments of principal received on or before such date and the principal
component of all Periodic Payments due on or before such date, whether or not
received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan) generated by
the related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve times the
amount of the Periodic Payment in effect for such Mortgage Loan as of such date
of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent
sixty days or more in respect to a Periodic Payment (not including the Balloon
Payment) or (ii) is delinquent in respect of its Balloon Payment unless the
Mortgagor continues to make the Assumed Scheduled Payment and the Master
Servicer or Special Servicer, as the case may be, has received written evidence
acceptable to the Special Servicer or the Controlling Class Representative from
an institutional lender of such lender's binding commitment to refinance such
Mortgage Loan within 90 days(or 150 days with the consent of the Controlling
Class Representative) after the Due Date of such Balloon Payment (provided that
if such refinancing does not occur during such time specified in the commitment,
the related Mortgage Loan shall immediately become a Defaulted Mortgage Loan),
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (iii) as to which the Master Servicer or Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan
on the Mortgage Loan Schedule which permits or requires the related Mortgagor
(or permits the holder of such Mortgage Loan to require the related Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit O attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but constituted Specially Serviced Mortgage Loans, or were in
foreclosure but were not REO Property and the status of resolution or such other
form for the presentation of such information as may be approved from time to
time by the CMSA for commercial mortgage securities transactions generally.
"Depositor": First Union Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day prior to such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management of such REO
Property, the holding of such REO Property primarily for sale or lease or the
performance of any construction work thereon, in each case other than through an
Independent Contractor or lessee; provided, however, that the Trustee (or the
Special Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for purposes of allocating any Yield Maintenance Charge or Prepayment
Premium received thereon or with respect thereto among the respective Classes of
the Sequential Pay Certificates (other than any Excluded Class thereof), an
amount equal to the discount rate stated in the Mortgage Loan documents related
to such Mortgage Loan or REO Loan used in calculating the related Prepayment
Premium or Yield Maintenance Charge; provided, that if a discount rate is not
stated thereon, the "Discount Rate" will be an amount equal to the yield (when
compounded monthly) on the U.S. Treasury issue with a maturity date closest to
the maturity date for such prepaid Mortgage Loan or REO Loan. In the event there
are two or more such U.S. Treasury issues (a) with the same coupon, the issue
with the lowest yield shall apply, and (b) with maturity dates equally close to
the maturity date for the prepaid Mortgage Loan or REO Loan, the issue with the
earliest maturity date shall apply.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Paying Agent or the Certificate Registrar based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates for any Distribution Date, the Accrued Certificate Interest
in respect of such Class of Certificates for such Distribution Date, reduced
(other than with respect to the Class IO Certificates)(to not less than zero) by
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates for such Distribution Date, and (ii) with respect to each such
Class (other than the Class IO Certificates), such Class' share of any
Certificate Deferred Interest allocated to such Class in accordance with Section
4.04(c).
"Distribution Account": The segregated account or accounts created
and maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as Trustee,
in trust for the registered holders of First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-C1."
"Distribution Date": The twelfth day of any month, or if such
twelfth day is not a Business Day, the Business Day immediately succeeding,
commencing on March 12, 2002.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any document or documents
constituting a part of a Mortgage File, the occurrence and continuance of any of
the following: the document has not been properly executed, is missing (beyond
the time period required for its delivery pursuant to the terms of Section 2.02
and Section 2.03), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule, or does not appear to be regular on its face.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date or any Companion Loan on or prior to its maturity date, the
day of the month set forth in the related Mortgage Note on which each Periodic
Payment on such Mortgage Loan or Companion Loan is scheduled to be first due;
(ii) any Mortgage Loan after its Stated Maturity Date or any Companion Loan
after its maturity date, the day of the month set forth in the related Mortgage
Note on which each Periodic Payment on such Mortgage Loan or Companion Loan had
been scheduled to be first due; and (iii) any REO Loan, the day of the month set
forth in the related Mortgage Note on which each Periodic Payment on the related
Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and with respect to
deposits held for 30 days or more in such account the (a) long-term deposit or
unsecured debt obligations of which are rated at least (A) "Aa3" by Moody's and
(B) "AA-" by S&P (or "A-" provided the short-term unsecured debt obligations are
rated at least "A-1" by S&P) (or, with respect to any such Rating Agency, such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
applicable Rating Agency), at any time such funds are on deposit therein, or
with respect to deposits held for less than 30 days in such account the (b)
short-term deposits of which are rated at least "P-1" by Moody's and "A-1" by
S&P (or, with respect to any such Rating Agency, such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates) as evidenced in writing by the applicable Rating Agency at
any time such funds are on deposit therein, or (ii) a segregated trust account
or accounts maintained with a federal or state chartered depository institution
or trust company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority, or the use of such account would not, in and of itself, cause a
qualification, downgrading or withdrawal of the then-current rating assigned to
any Class of Certificates, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter in the case of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property is multifamily
property or (ii) the American Society for Testing and Materials in the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Class H, Class J, Class K, Class
L, Class M, Class N or Class O Certificate; provided, that any such Certificate
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions related to ERISA Restricted
Certificates contained in Section 5.02(c) if, as of the date of a proposed
transfer of such Certificate, either (i) it is rated in one of the four highest
generic ratings categories by a Rating Agency or (ii) relevant provisions of
ERISA would permit transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates.
"Exemption": Department of Labor Prohibited Transaction Exemption
("PTE") 96-22, as amended by PTE 97-34 and PTE 2000-58, and as such exemption
may be amended from time to time, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Xxxxxxx Mac or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan (and, if applicable, any
defaulted Companion Loan) or REO Property (other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by any of the Mortgage Loan
Sellers, pursuant to the First Union Mortgage Loan Purchase Agreement, the GACC
Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement, as applicable, by the Majority Subordinate Certificateholder, the
Companion Holder, Abbey Mezzanine Lender or the Special Servicer pursuant to
Section 3.18(d), 3.18(m) or 3.26(d) or by the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries that the Special Servicer has determined, in
accordance with the Servicing Standard, will be ultimately recoverable.
"First Union": First Union National Bank or its successor in
interest.
"First Union Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of February 10, 2002, between the
Depositor and First Union and relating to the transfer of the First Union
Mortgage Loans to the Depositor.
"First Union Mortgage Loans": Each of the Mortgage Loans transferred
and assigned to the Depositor pursuant to the First Union Mortgage Loan Purchase
Agreement.
"Fitch": Fitch Ratings, Inc., or its successor in interest. If
neither such Rating Agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Paying Agent, the Master Servicer
and the Special Servicer, and specific ratings of Fitch herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
"FNMA": Federal National Mortgage Association or any successor.
"GACC": German American Capital Corporation or its successor in
interest.
"GACC Mortgage Loans: Each of the Mortgage Loans transferred and
assigned to the Depositor pursuant to the GACC Mortgage Loan Purchase Agreement.
"GACC Mortgage Loan Purchase Agreement": That certain mortgage loan
purchase agreement, dated as of February 10, 2002, between the Depositor and
GACC and relating to the transfer of the GACC Mortgage Loans to the Depositor.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, over (ii) the Purchase Price for such
Mortgage Loan on the date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(f)
on behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association, as Paying Agent for Xxxxx Fargo
Bank Minnesota, N.A., as Trustee, in trust for the registered holders of First
Union National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1." Any such account shall be an Eligible Account.
"Grantor Trust": That certain "grantor trust" (within the meaning of
the Grantor Trust Provisions), the assets of which are the Grantor Trust Assets.
"Grantor Trust Assets": The segregated pool of assets consisting of
any Additional Interest with respect to the ARD Loans after their respective
Anticipated Repayment Dates and amounts held from time to time in the Additional
Interest Account that represent Additional Interest.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of
the Code.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Historical Liquidation Report": A report substantially containing
the information described in Exhibit Q attached hereto, setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally.
"Historical Loan Modification Report": A report substantially
containing the information described in Exhibit P attached hereto, setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, have been modified pursuant to this Agreement (i) during the related
Collection Period and (ii) since the Cut-off Date, showing the original and the
revised terms thereof or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the Paying
Agent, the Trustee and any and all Affiliates thereof, (ii) does not have any
direct financial interest in or any material indirect financial interest in any
of the Depositor, the Master Servicer, the Special Servicer, the Controlling
Class Representative, the Paying Agent, the Trustee or any Affiliate thereof,
and (iii) is not connected with the Depositor, the Master Servicer, the
Controlling Class Representative, the Special Servicer, the Paying Agent, the
Trustee or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Depositor, the
Master Servicer, the Controlling Class Representative, the Special Servicer, the
Paying Agent, the Trustee or any Affiliate thereof merely because such Person is
the beneficial owner of 1% or less of any class of securities issued by the
Depositor, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Paying Agent, the Trustee or any Affiliate thereof, as the
case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Paying Agent, the Trustee or the Trust Fund,
delivered to the Paying Agent, the Trustee and the Master Servicer), so long as
REMIC I does not receive or derive any income from such Person and provided that
the relationship between such Person and REMIC I is at arm's length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5), or any other Person
upon receipt by the Paying Agent and the Trustee of an Opinion of Counsel, which
shall be at no expense to the Master Servicer, the Special Servicer, the Paying
Agent, the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Initial Resolution Period": As defined in Section 2.03(a).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.08(c).
"Insured Event": With respect to a Lease Enhancement Policy, any
occurrence, condition or event that gives rise or with the passage of time will
give rise to a claim under the Lease Enhancement Policy.
"Interest Accrual Period": With respect to each Class of Regular
Certificates or REMIC I Regular Interests and any Distribution Date, the
calendar month immediately preceding the calendar month in which such
Distribution Date occurs. Notwithstanding the foregoing, each Interest Accrual
Period is deemed to consist of 30 days for purposes of calculating interest on
the Regular Certificates and REMIC I Regular Interests.
"Interest Reserve Account": The segregated account created and
maintained by the Master Servicer pursuant to Section 3.04(c) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "First Union
National Bank, as Master Servicer for Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, on behalf of and in trust for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs in February of each year and in
January of each year that is not a leap year, an amount equal to one day's
interest at the related Mortgage Rate (without regard to the second proviso in
the definition thereof) on the related Stated Principal Balance as of the Due
Date in the month in which such Distribution Date occurs (but prior to the
application of any amounts owed on such Due Date), to the extent a Periodic
Payment or P&I Advance is made in respect thereof for such Due Date as of the
related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360
Mortgage Loan.
"Interested Person": The Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any Holder of a Certificate, any Companion Holder (only as to
the related Companion Loan) or any Affiliate of any such Person.
"Interim Delinquent Loan Status Report": A report substantially
containing the content described in Exhibit T attached hereto, setting forth
those Mortgage Loans which, as of the last day of the calendar month immediately
preceding the preparation of such report, were delinquent or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally.
"Internet Website": The Internet Websites maintained by the Paying
Agent and, if applicable, the Master Servicer initially located at
"xxx.xxxxxxxx.xxx" and "xxx.xxxxxxxxxx.xxx", respectively, or such other address
as provided to the parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"LaSalle": LaSalle Bank National Association or its successor in
interest, in its capacity as a Mortgage Loan Seller.
"LaSalle Mortgage Loans": Each of the Mortgage Loans transferred and
assigned to the Depositor pursuant to the LaSalle Mortgage Loan Purchase
Agreement.
"LaSalle Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of February 10, 2002, among the Depositor and
LaSalle and relating to the transfer of the LaSalle Mortgage Loans to the
Depositor.
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon during any Collection Period, other than
Penalty Interest, whether as payments, Insurance Proceeds, Liquidation Proceeds
or otherwise, which represent late collections of the principal and/or interest
portions of a Scheduled Payment (other than a Balloon Payment) or an Assumed
Scheduled Payment in respect of such Mortgage Loan or Companion Loan due or
deemed due on a Due Date in a previous Collection Period, and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property during any Collection Period, whether as Insurance
Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Scheduled Payment
(other than a Balloon Payment) or an Assumed Scheduled Payment in respect of the
predecessor Mortgage Loan or of an Assumed Scheduled Payment in respect of such
REO Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"Lease Enhancement Policy": Any non-cancelable lease enhancement
insurance policy that insures against certain losses arising out of casualty
and/or condemnation of the related Mortgaged Property.
"Lease Enhancement Policy Insurer": With respect to any Lease
Enhancement Policy, in the case of loan number 96, Lexington Insurance Company.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by a Mortgage Loan Seller pursuant to the First Union
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or
the LaSalle Mortgage Loan Purchase Agreement, as applicable; or (iv) such
Mortgage Loan is purchased by the Majority Subordinate Certificateholder, the
Companion Holder, the Abbey Mezzanine Lender or the Special Servicer pursuant to
Section 3.18(d), 3.18(m) or 3.26(d), or by the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder pursuant to Section 9.01.
With respect to any REO Property (and the related REO Loan), any of the
following events: (i) a Final Recovery Determination is made with respect to
such REO Property; or (ii) such REO Property is purchased by the Master
Servicer, the Special Servicer or the Majority Subordinate Certificateholder
pursuant to Section 9.01; or (iii) such REO Property is purchased by the
Companion Holder as described in Section 3.26(d).
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with the liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 or 3.26 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Subordinate Certificateholder, the Companion Holder, the Abbey
Mezzanine Lender or the Special Servicer pursuant to Section 3.18(d), Section
3.18(m) or Section 3.26(d); (v) the repurchase of a Mortgage Loan by a Mortgage
Loan Seller, pursuant to the First Union Mortgage Loan Purchase Agreement, the
GACC Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement, as applicable; or (vi) the purchase of a Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer, or the Majority
Subordinate Certificateholder pursuant to Section 9.01.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (other than any Holder which is
an Affiliate of the Depositor or a Mortgage Loan Seller) entitled to greater
than 50% of the Voting Rights allocated to the Controlling Class; provided,
however, that if there is no single Holder of Certificates entitled to greater
than 50% of the Voting Rights allocated to such Class, then the Majority
Subordinate Certificateholder shall be the single Holder of Certificates with
the largest percentage of Voting Rights allocated to such Class. With respect to
determining the Majority Subordinate Certificateholder, the Class A-1
Certificates and the Class A-2 Certificates shall be deemed to be a single Class
of Certificates, with such Voting Rights allocated among the Holders of
Certificates of such Classes in proportion to the respective Certificate
Principal Balances of such Certificates as of such date of determination.
"Master Servicer": First Union National Bank, its successor in
interest (including the Trustee as successor pursuant to Section 7.02), or any
successor master servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan the
percentage set forth under the column "Master Servicing Fee Rate" on the
Mortgage Loan Schedule.
"Material Breach": A Breach that materially and adversely affects
the value of a Mortgage Loan, the related Mortgaged Property or the interests of
the Trust Fund or any Certificateholder therein.
"Material Document Defect": A Document Defect that materially and
adversely affects the value of a Mortgage Loan, the related Mortgaged Property
or the interests of the Trust Fund or any Certificateholder therein; provided,
however, that the absence of the following documents shall be presumed to be
Material Document Defects: the original Mortgage Note (or a lost note affidavit
and indemnity with a copy of such Mortgage Note attached thereto), an original
or executed copy of the Mortgage (with evidence of recording thereon), an
original or copy of the required lender's title insurance policy (or in lieu
thereof a marked-up title commitment marked as binding and countersigned by the
title company or its authorized agent), the original of any related letters of
credit or a copy of any related ground lease from the Mortgage File or any
material nonconformity to the Mortgage Loan Schedule of any such document or any
material irregularity on the face thereof.
"Money Term": With respect to any Mortgage Loan, the maturity date,
Mortgage Rate, Stated Principal Balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a Prepayment Premium
or Yield Maintenance Charge in connection with a Principal Prepayment (but not
any late fees or default interest provisions).
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer and the Special Servicer, and the specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
to which the Mortgage Rate has been reduced through a modification and any
Distribution Date, the amount by which (a) interest accrued at such reduced rate
is less than (b) the amount of interest that would have accrued on such Mortgage
Loan at the Mortgage Rate before such reduction, to the extent such amount has
been added to the outstanding principal balance of such Mortgage Loan.
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto), together
with any and all intervening endorsements thereon, endorsed on its face or
by allonge attached thereto (without recourse, representation or warranty,
express or implied) to the order of Xxxxx Fargo Bank Minnesota, N.A., as
trustee for the registered holders of First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2002-C1, or in blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form, (except
for completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information) (or, in the case of the
LaSalle Mortgage Loans and the GACC Mortgage Loans, a copy of an executed
assignment, in recordable form) of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1, or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of Xxxxx Fargo Bank Minnesota, N.A., as trustee for
the registered holders of First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-C1, or
in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC Financing
Statements in favor of the originator of such Mortgage Loan or in favor of
any assignee prior to the Trustee (but only to the extent the Mortgage
Loan Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Mortgage Loan Seller on record with
the applicable public office for UCC Financing Statements, an original
(or, in the case of the LaSalle Mortgage Loans and GACC Mortgage Loans, a
copy) UCC Amendment, in form suitable for filing in favor of Xxxxx Fargo
Bank Minnesota, N.A., as trustee for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, any Lease Enhancement
Policy, guaranty or ground lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement related to mezzanine debt
related to the Mortgagor;
(xi) a copy of any letter of credit and related transfer documents,
loan agreement, escrow agreement or security agreement relating to a
Mortgage Loan;
(xii) for any hospitality property, copies of franchise agreements
and comfort letters, if any;
(xiii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related CLF
Intercreditor Agreement; provided that a copy of each mortgage note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) and (ix) (solely with respect to any guaranty) of this definition, shall be
deemed to include only such documents to the extent the Trustee or Custodian has
actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage, any Lease
Enhancement Policy, and other security documents contained in the related
Mortgage File. As used in this Agreement, "Mortgage Loan" does not include any
Companion Loan other than with respect to the servicing and administration of
Mortgage Loans as set forth in Section 3.26.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B
and in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and
name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining term to
stated maturity and (C) the Stated Maturity Date and, in the case of an
ARD Loan, the Anticipated Repayment Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for such ARD Loan;
(xii) the related Mortgage Loan Seller;
(xiii) whether such Mortgage Loan is insured by a Lease Enhancement
Policy or environmental policy;
(xiv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xv) whether such Mortgage Loan is a Defeasance Loan;
(xvi) whether the Mortgage Loan is secured by a letter of credit;
(xvii) whether such Mortgage Loan is an Interest Reserve Loan;
(xviii) whether payments on such Mortgage Loan are made to a
lock-box;
(xix) the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan;
(xx) the original principal balance;
(xxi) the interest accrual basis;
(xxii) the number of grace days until a Periodic Payment is late;
(xxiii) the number of units and square feet of property; and
(xxiv) type of Mortgaged Property (general property type).
"Mortgage Loan Seller": First Union, GACC, LaSalle or their
respective successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding, provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360-day year consisting of twelve 30-day months,
then, solely for purposes of calculating the Pass-Through Rates, the Mortgage
Rate of such Mortgage Loan for any one-month period preceding a related Due Date
will be the annualized rate at which interest would have to accrue in respect of
such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Penalty Interest or Additional Interest) in respect of such
Mortgage Loan during such one-month period at the related Mortgage Rate;
provided, however, that with respect to each Interest Reserve Loan, the Mortgage
Rate for the one-month period (A) preceding the Due Dates that occur in January
and February in any year which is not a leap year or preceding the Due Date that
occurs in February in any year which is a leap year will be determined exclusive
of the Interest Reserve Amounts for such months, and (B) preceding the Due Date
in March will be determined inclusive of the Interest Reserve Amounts for the
immediately preceding February and, if applicable, January; provided, further,
that, if the Mortgage Rate of the related Mortgage Loan has been modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20, solely for purposes of calculating
the Pass-Through Rate, the Mortgage Rate for such Mortgage Loan shall be
calculated without regard to such event;
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
voluntary Principal Prepayments on the Mortgage Loans during the related
Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the Certificate Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls on the
Mortgage Loans.
"Net Investment Earnings": With respect to the Certificate Account,
the Interest Reserve Account, any Servicing Account, any Special Reserve
Account, any Reserve Account or any REO Account for any Collection Period, the
amount, if any, by which the aggregate of all interest and other income realized
during such Collection Period on funds held in such account, exceeds the
aggregate of all losses, if any, incurred during such Collection Period in
connection with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Interest Reserve Account, any Servicing Account, any Special Reserve Account,
any Reserve Account or any REO Account for any Collection Period, the amount by
which the aggregate of all losses, if any, incurred during such Collection
Period in connection with the investment of funds held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable Master
Servicing Fee Rate.
"Net Operating Income or NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of REMIC I, including any lease renewed,
modified or extended on behalf of REMIC I if the Special Servicer has the right
to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer, with respect to each Specially Serviced Mortgage Loan and REO Loan and
by the Master Servicer with respect to each other Mortgage Loan or, if
applicable, Loan Pair, substantially containing the content described in Exhibit
R attached hereto, presenting the computations made in accordance with the
methodology described in Exhibit R to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement and in accordance with the most recent CMSA standards, as such
standards may change from time to time.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer or the Trustee, as the case may be, that, as determined by the Master
Servicer or the Trustee, as applicable, in accordance with the Servicing
Standard with respect to such P&I Advance will not be ultimately recoverable
from Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan, REO Loan or Companion
Loan by the Master Servicer or the Trustee, as the case may be, that, as
determined by the Master Servicer or the Trustee in accordance with the
Servicing Standard, will not be ultimately recoverable from Late Collections,
Insurance Proceeds, Liquidation Proceeds, or any other recovery on or in respect
of such Mortgage Loan, Companion Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class IO, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class R-I, Class R-II or Class Z
Certificate.
"Non-United States Person": Any Person other than a United States
Person.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Operating Statement Analysis": With respect to each Mortgage Loan
and REO Mortgaged Property, a report prepared by the Special Servicer with
respect to each Specially Serviced Mortgage Loan and REO Loan and by the Master
Servicer with respect to each other Mortgage Loan or, if applicable, Loan Pair
substantially containing the content described in Exhibit S attached hereto and
conforming to the most recent CMSA standard, as such standards may change from
time to time.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the Master Servicer or the Special
Servicer) acceptable to and delivered to the Paying Agent or the Master
Servicer, as the case may be, except that any opinion of counsel relating to (a)
the qualification of REMIC I or REMIC II as a REMIC; (b) the qualification of
the Grantor Trust as a grantor trust; (c) compliance with REMIC provisions or
(d) the resignation of the Master Servicer or Special Servicer pursuant to
Section 6.04 must be an opinion of counsel who is in fact Independent of the
Master Servicer, the Special Servicer or the Depositor, as applicable.
"Option Holder": As defined in Section 3.18(d).
"Option Price": As defined in Section 3.18(d).
"Original Class Principal Balance": With respect to any Class of
Regular Certificates (other than the Class IO Certificates), the initial Class
Principal Balance thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Class IO-I Notional Amount": $728,324,739.
"Original Class IO-II Notional Amount": $444,320,000.
"Original Notional Amount": The Original Class IO-I Notional Amount
or the Original Class IO-II Notional Amount, as the context requires.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date, 5.585% per
annum;
(ii) the Class A-2 Certificates for any Distribution Date, 6.141%
per annum;
(iii) the Class B Certificates for any Distribution Date, 6.320% per
annum;
(iv) the Class C Certificates for any Distribution Date, 6.509% per
annum;
(v) the Class D Certificates for any Distribution Date, 6.622% per
annum;
(vi) the Class E Certificates for any Distribution Date, the lesser
of (1) 6.868% per annum and (2) the Weighted Average Net Mortgage Rate for
such date;
(vii) the Class F Certificates for any Distribution Date, the lesser
of (1) 6.966% per annum and (2) the Weighted Average Net Mortgage Rate for
such date;
(viii) the Class G Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date minus 0.02% per annum;
(ix) the Class H Certificates for any Distribution Date, 5.967% per
annum;
(x) the Class J Certificates for any Distribution Date, 5.967% per
annum;
(xi) the Class K Certificates for any Distribution Date, 5.967% per
annum;
(xii) the Class L Certificates for any Distribution Date, 5.967% per
annum;
(xiii) the Class M Certificates for any Distribution Date, 5.967%
per annum;
(xiv) the Class N Certificates for any Distribution Date, 5.967% per
annum;
(xv) the Class O Certificates for any Distribution Date, 5.967% per
annum;
(xvi) the Class IO-I Certificates, for the initial Distribution
Date, 0.54248% per annum, and for any subsequent Distribution Date, the
weighted average of Class IO-I Strip Rates for the Components for such
Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date); and
(xvii) the Class IO-II Certificates for the initial Distribution
Date, 0.95872% per annum, and for any subsequent Distribution Date, the
weighted average of the Class IO-II Strip Rates for the respective Class
IO-II Components for such Distribution Date (weighted on the basis of the
respective Component Notional Amounts of such Components outstanding
immediately prior to such Distribution Date).
"Paying Agent": LaSalle Bank National Association, in its capacity
as paying agent hereunder, its successors in interest, or any successor Paying
Agent as hereinafter provided.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof calculated at the Paying Agent Fee
Rate of 0.0016%.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan or Companion
Loan (or successor REO Loan), any amounts collected thereon, other than late
payment charges, Additional Interest, Prepayment Premiums or Yield Maintenance
Charges, that represent penalty interest (arising out of a default) in excess of
interest on the Stated Principal Balance of such Mortgage Loan or Companion Loan
(or successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance or Original Notional Amount, as the case
may be, of the relevant Class. With respect to a Residual Certificate or a Class
Z Certificate, the percentage interest in distributions to be made with respect
to the relevant Class, as stated on the face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not more
than 365 days), provided such obligations are backed by the full faith and
credit of the United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change or be liquidated prior to maturity.
Interest may either be fixed or variable. In addition, such obligations
may not have a rating from S&P with an "r" highlighter. If such interest
is variable, interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that index;
(ii) repurchase obligations with respect to any security described
in clause (i) above (having original maturities of not more than 365
days), provided that the short-term deposit or debt obligations, of the
party agreeing to repurchase such obligations are rated in the highest
rating categories of each of S&P and Xxxxx'x or such lower rating as will
not result in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, it may not have a rating from S&P with an "r"
highlighter and its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under the laws
of the United States or any state thereof (having original maturities of
not more than 365 days), the short term obligations of which are rated in
the highest rating categories of each of S&P and Xxxxx'x or such lower
rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by
the Rating Agencies. In addition, its terms should have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change. In addition, it may not have a rating from S&P with an "r"
highlighter and its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof (or if not so incorporated, the commercial
paper is United States Dollar denominated and amounts payable thereunder
are not subject to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest rating category of each of S&P
and Xxxxx'x or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. The
commercial paper by its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change. In
addition, it may not have a rating from S&P with an "r" highlighter and
its terms must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds that maintain a constant asset value
and which are rated in the highest applicable rating category by Xxxxx'x
and which are rated "AAAm" or "AAAm G" by S&P (or such lower rating as
will not result in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing by the Rating
Agencies) and which seeks to maintain a constant net asset value. In
addition, it may not have a rating from S&P with an "r" highlighter and
its terms must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change; and
(vi) any other obligation or security that constitutes a "cash flow
investment" within the meaning of Section 860G(a)(6) of the Code and is
acceptable to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master Servicer, the
Special Servicer and the Paying Agent; provided, however, in no event
shall such other obligation or security be rated less than "AA/A-1" or
"Aa3/P-1" by S&P and Xxxxx'x, respectively;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization, a Plan or a Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I or REMIC II, the Holder of Certificates holding the largest Percentage
Interest of the related Class of Residual Certificates.
"Policy Termination Event": With respect to any Lease Enhancement
Policy, any abatement, rescission, cancellation, termination, contest, legal
process, arbitration or disavowal of liability thereunder by the related
insurer.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of the related Master Servicing Fee and if applicable, the Additional
Interest) accrued on the amount of such Principal Prepayment during the period
from and after such Due Date and ending on the date such Principal Prepayment
was applied to such Mortgage Loan, to the extent collected (exclusive of any
related Prepayment Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in part during
any Collection Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection Period, the
amount of interest, to the extent not collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Paying Agent, the Trustee
and the Special Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) and any Assumed Scheduled Payments due or
deemed due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, to the extent not previously
received or advanced with respect to a Distribution Date prior to the related
Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related Stated
Maturity Date occurred during or prior to the related Collection Period, any
payment of principal (other than a Principal Prepayment) made by or on behalf of
the related Mortgagor during the related Collection Period (including any
Balloon Payment), net of any portion of such payment that represents a recovery
of the principal portion of any Scheduled Payment (other than a Balloon Payment)
due, or the principal portion of any Assumed Scheduled Payment deemed due, in
respect of such Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise included in clause
(a), (b) or (c) above, payments that were received on the Mortgage Loans during
the related Collection Period and that were identified and applied by the Master
Servicer and/or Special Servicer as recoveries of principal of such Mortgage
Loans, in each case net of any portion of such amounts that represents a
recovery of the principal portion of any Scheduled Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Scheduled Payment
deemed due, in respect of the related Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments deemed due in respect of
the related REO Loans for their respective Due Dates occurring during the
related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were received
during the related Collection Period on such REO Properties and that were
identified and applied by the Master Servicer and/or Special Servicer as
recoveries of principal of the related REO Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion of
any Scheduled Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Scheduled Payment deemed due, in respect of the related
REO Loan or the predecessor Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the immediately preceding Distribution Date, over the aggregate distributions of
principal made on the Sequential Pay Certificates on such immediately preceding
Distribution Date pursuant to Section 4.01.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer out of
certain related recoveries pursuant to the third paragraph of Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set forth
in the third paragraph of Section 3.11(c), 1.00%.
"Privileged Person": Any Certificateholder, Certificate Owner, any
Person identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
any Mortgage Loan Seller, the Companion Holder (only with respect to its
Companion Loan), any Underwriter or any party hereto; provided that no
Certificate Owner or prospective transferee of a Certificate or interest therein
shall be considered a "Privileged Person" or be entitled to a password or
restricted access as contemplated by Section 3.15 unless such Person has
delivered to the Trustee or the Master Servicer, as applicable, a certification
in the form of Exhibit V-1 or Exhibit V-2, as applicable.
"Prospectus": The prospectus dated February 6, 2002, as supplemented
by the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated
February 14, 2002 of the Depositor relating to the registration of the
Registered Certificates under the Securities Act.
"PTE 95-60": As defined in Section 5.02(c).
"Purchase Option": As defined in Section 3.18(d).
"Purchase Option Notice": As defined in Section 3.18(f).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to the First Union Mortgage Loan
Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or the LaSalle
Mortgage Loan Purchase Agreement, as applicable, by the Majority Subordinate
Certificateholder, the Companion Holder or the Special Servicer as described in
Section 3.18(d) or 3.26(d), the Abbey Mezzanine Lender pursuant to Section
3.18(m), or by the Depositor, the Special Servicer, the Majority Subordinate
Certificateholder or the Master Servicer pursuant to Section 9.01, a cash price
equal to the outstanding principal balance of such Mortgage Loan (or REO Loan)
as of the date of purchase, together with (a) all accrued and unpaid interest on
such Mortgage Loan (or REO Loan) at the related Mortgage Rate to but not
including the Due Date in the Collection Period of purchase plus any accrued
interest on P&I Advances made with respect to such Mortgage Loan, (b) all
related and unreimbursed Servicing Advances plus any accrued and unpaid interest
thereon, (c) any reasonable costs and expenses, including, but not limited to,
the cost of any enforcement action or sale, incurred by the Master Servicer, the
Special Servicer or the Trust Fund in connection with any such purchase (to the
extent not included in clause (b) above) and (d) any other Additional Trust Fund
Expenses in respect of such Mortgage Loan (including any Additional Trust Fund
Expenses in respect of such Mortgage Loan previously reimbursed or paid by the
Trust Fund) and (e) with respect to the Abbey Mezzanine Lender's purchase of any
Mortgage Loan pursuant to Section 3.18(m), if the Abbey Mezzanine Lender does
not exercise its right to purchase the applicable Mortgage Loan within the 15
day time period pursuant to the Abbey Intercreditor Agreement, the Abbey
Mezzanine Lender will be required to pay an amount equal to 1% of the purchase
price of the applicable Mortgage Loan to the Special Servicer as a Principal
Recovery Fee (and such Principal Recovery Fee will not be an expense of the
Trust); provided, that the Purchase Price shall not be reduced by any
outstanding P&I Advance.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A2" by
Xxxxx'x and "A" by S&P (or the obligations of which are guaranteed or backed by
a company having such a claims paying ability) and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a claims
paying ability rated no lower than two rating categories (without regard to
pluses or minuses or numerical qualifications) below the rating assigned to the
then highest rated outstanding Certificate (or, with respect to the required
Xxxxx'x rating, if not rated by Xxxxx'x, then at least "A" by two other
nationally recognized statistical rating organizations (which may include S&P ))
but in no event lower than "A" by S&P and "A2" by Xxxxx'x (or, if not rated by
Xxxxx'x, then at least "A" by two other nationally recognized statistical rating
organizations (which may include S&P)), or, in the case of clauses (i) and (ii),
such other rating as each Rating Agency shall have confirmed in writing will not
cause such Rating Agency to downgrade, qualify or withdraw the then current
rating assigned to any of the Certificates that are then currently being rated
by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) have a remaining term to stated maturity not greater than,
and not more than two years less than, the remaining term to stated maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher than the lesser of (a) the original Loan-to-Value Ratio of the deleted
Mortgage Loan or (b) the then-current Loan-to-Value Ratio of the deleted
Mortgage Loan; (vii) comply as of the date of substitution with all of the
representations and warranties set forth in the First Union Mortgage Loan
Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or the LaSalle
Mortgage Loan Purchase Agreement, as applicable; (viii) have an Environmental
Assessment that indicates no adverse environmental conditions with respect to
the related Mortgaged Property and which will be delivered as a part of the
related Servicing File; (ix) have an original Debt Service Coverage Ratio of not
less than the original Debt Service Coverage Ratio of the deleted Mortgage Loan
and a current Debt Service Coverage Ratio of not less than the greater of (a)
the original Debt Service Coverage Ratio of the deleted Mortgage Loan and (b)
the then-current Debt Service Coverage Ratio of the deleted Mortgage Loan; (x)
be determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense) to be a "qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the Code; (xi) not have a maturity date after the date two years
prior to the Rated Final Distribution Date; (xii) not be substituted for a
deleted Mortgage Loan unless the Trustee and the Paying Agent have received
prior confirmation in writing by each Rating Agency that such substitution will
not result in the withdrawal, downgrade, or qualification of the rating assigned
by the Rating Agency to any Class of Certificates then rated by the Rating
Agency (the cost, if any, of obtaining such confirmation to be paid by the
Mortgage Loan Seller); (xiii) have a date of origination that is not more than
12 months prior to the date of substitution; (xiv) have been approved by the
Controlling Class Representative (or, if there is no Controlling Class
Representative then serving, by the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class); and (xv) not
be substituted for a deleted Mortgage Loan if it would result in the termination
of the REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement, as
determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense). In the event that one or more mortgage loans are substituted for one
or more deleted Mortgage Loans, then the amounts described in clause (i) shall
be determined on the basis of aggregate principal balances and the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis.
When a Qualified Substitute Mortgage Loan is substituted for a deleted Mortgage
Loan, the applicable Mortgage Loan Seller shall certify that the Mortgage Loan
meets all of the requirements of the above definition and shall send such
certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in February
2034, the first Distribution Date after the 24th month following the end of the
amortization term for the Mortgage Loan that, as of the Cut-off Date, has the
longest remaining amortization term.
"Rating Agency": Each of Xxxxx'x and S&P.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive of any portion
thereof that constitutes default interest in excess of the Mortgage Rate,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges), plus (c)
any related unreimbursed Servicing Advances as of the commencement of the
Collection Period in which the Final Recovery Determination was made, together
with any new related Servicing Advances made during such Collection Period,
minus (d) all payments and proceeds, if any, received in respect of such
Mortgage Loan or the REO Property that relates to such REO Loan, as the case may
be, during the Collection Period in which such Final Recovery Determination was
made; (2) each defaulted Mortgage Loan as to which any portion of the principal
or previously accrued interest (other than Additional Interest and Penalty
Interest) payable thereunder was canceled in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of such principal and/or interest so
canceled; and (3) each Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, the amount of the consequent
reduction in the interest portion of each successive Periodic Payment due
thereon (each such Realized Loss shall be deemed to have been incurred on the
Due Date for each affected Periodic Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class B, Class C
or Class D Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and, consisting
of: (i) all of the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received
after the Closing Date (excluding all Additional Interest on such Mortgage
Loans), together with all documents included in the related Mortgage Files and
any related Escrow Payments and Reserve Funds; (ii) all amounts held from time
to time in the Collection Account, the Interest Reserve Account, the
Gain-on-Sale Reserve Account, any REO Account and, to the extent related to
REMIC I, the Distribution Account; (iii) any REO Property acquired in respect of
such a Mortgage Loan; (iv) the rights of the Depositor under Sections 2, 3, 9,
10, 11, 12, 13, 14, 16, 17 and 18 of each of the First Union Mortgage Loan
Purchase Agreement, the GACC Mortgage Loan Purchase Agreement and the LaSalle
Mortgage Loan Purchase Agreement with respect to such Mortgage Loans; and (v)
the rights of the mortgagee under all Insurance Policies with respect to such
Mortgage Loans, in each case exclusive of the interest of the holder of a
Companion Loan therein.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest (other than
REMIC I Regular Interest L-A-2-1 and L-A-2-2) shall equal the Original Class
Principal Balance of the corresponding Class of Sequential Pay Certificates as
set forth in the Preliminary Statement hereto. As of the Closing Date, the REMIC
I Principal Balance of REMIC I Regular Interest L-A-2-1 and L-A-2-2 shall be
$75,563,000 and $355,100,000, respectively. On each Distribution Date, the REMIC
I Principal Balance of each REMIC I Regular Interest shall be permanently
reduced by all distributions of principal deemed to have been made in respect of
such REMIC I Regular Interest on such Distribution Date pursuant to Section
4.01(h), and shall be further permanently reduced on such Distribution Date by
all Realized Losses and Additional Trust Fund Expenses deemed to have been
allocated thereto on such Distribution Date pursuant to Section 4.04(b). The
REMIC I Principal Balance of any Class of REMIC I Regular Interests will be
increased on any Distribution Date by the amount of any Certificate Deferred
Interest deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.01(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Net Mortgage Rate.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time, to the extent
related to REMIC II, in the Distribution Account conveyed in trust to the
Trustee for the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section 2.08, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class IO-I, Class IO-II, Class J,
Class K, Class L, Class M, Class N, Class O or Class R-II Certificate.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "GMAC
Commercial Mortgage Corporation, as Special Servicer, in trust for registered
holders of First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002-C1."
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(k) or Section 2.03(f).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of REMIC I
and deemed to provide for Periodic Payments of principal and/or interest equal
to its Assumed Scheduled Payment and otherwise to have the same terms and
conditions as its predecessor Mortgage Loan (such terms and conditions to be
applied without regard to the default on such predecessor Mortgage Loan and the
acquisition of the related REO Property as part of the Trust Fund). Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of its predecessor Mortgage Loan (or, if applicable,
Companion Loan) as of the date of the related REO Acquisition. All Scheduled
Payments (other than a Balloon Payment), Assumed Scheduled Payments (in the case
of a Balloon Mortgage Loan delinquent in respect of its Balloon Payment) and
other amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition, shall
be deemed to continue to be due and owing in respect of an REO Loan. Collections
in respect of each REO Loan (after provision for amounts to be applied to the
payment of, or to be reimbursed to the Master Servicer, the Special Servicer, or
the Trustee for the payment of, the costs of operating, managing, selling,
leasing and maintaining the related REO Property or for the reimbursement of the
Master Servicer, the Special Servicer, or the Trustee for other related
Servicing Advances as provided in this Agreement) shall be treated: first, as a
recovery of accrued and unpaid interest on such REO Loan at the related Mortgage
Rate to but not including the Due Date in the Collection Period of receipt
(exclusive of any portion thereof that constitutes Additional Interest); second,
as a recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; and third, in accordance with the normal servicing practices
of the Master Servicer, as a recovery of any other amounts due and owing in
respect of such REO Loan, including, without limitation, (i) Yield Maintenance
Charges, Prepayment Premiums and Penalty Interest and (ii) Additional Interest
and other amounts, in that order. Notwithstanding the foregoing, all amounts
payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Servicing Advances and P&I Advances, together with any
interest accrued and payable to the Master Servicer, the Special Servicer or the
Trustee in respect of such Servicing Advances and P&I Advances in accordance
with Sections 3.03(d) and 4.03(d), shall continue to be payable or reimbursable
to the Master Servicer, the Special Servicer or the Trustee, as the case may be,
in respect of an REO Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (subject to the
CLF Intercreditor Agreement with respect to a Mortgaged Property securing a Loan
Pair) through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially in the form of and
containing the information described in Exhibit M attached hereto, or in such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally.
"REO Tax": As defined in Section 3.17(a).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 CFR ss.225.62 and conducted in accordance with the standards of the
Appraisal Institute.
"Required Appraisal Date": With respect to any Required Appraisal
Mortgage Loan, the earliest date on which any of the items specified in clauses
(i) through (vi) of the first paragraph of the definition of Required Appraisal
Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is
sixty (60) days or more delinquent in respect of any Periodic Payments (other
than a Balloon Payment), (ii) that becomes an REO Loan, (iii) that has been
modified by the Special Servicer to reduce the amount of any Periodic Payment
(other than a Balloon Payment), (iv) with respect to which a receiver is
appointed and continues in such capacity in respect of the related Mortgaged
Property, (v) with respect to which a Mortgagor declares bankruptcy or with
respect to which the related Mortgagor is subject to a bankruptcy proceeding or
(vi) with respect to which any Balloon Payment on such Mortgage Loan has not
been paid by its scheduled maturity date unless the Mortgagor continues to make
the Assumed Scheduled Payment and the Master Servicer or the Special Servicer,
as the case may be, has received written evidence acceptable to the Special
Servicer or Controlling Class Representative from an institutional lender of
such lender's binding commitment to refinance such Mortgage Loan within 90 days
(or 150 days with the consent of the Controlling Class Representative) after the
due date of such Balloon Payment (provided that if such refinancing does not
occur during such time specified in the commitment, the related Mortgage Loan
will immediately become a Required Appraisal Mortgage Loan); provided, however,
that a Required Appraisal Mortgage Loan will cease to be a Required Appraisal
Mortgage Loan;
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive full and
timely Periodic Payments under the terms of such Mortgage Loan (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20); and
(b) with respect to the circumstances described in clauses (iv), (v)
and (vi) above, when such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the Servicing
Standard, but, with respect to any bankruptcy or insolvency proceedings
described in clauses (iv) and (v), no later than the entry of an order or decree
dismissing such proceeding, and with respect to the circumstances described in
clause (vi) above, no later than the date that the Special Servicer agrees to an
extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Required Appraisal Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of the
Mortgaged Property related to the subject Required Appraisal Mortgage Loan as
determined by a Required Appraisal or letter update or internal valuation, if
applicable, and provided further that for purposes of determining any Appraisal
Reduction Amount in respect of such Required Appraisal Mortgage Loan, such
Appraisal Reduction Amount shall be amended annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
or internal valuation, if applicable, of a Required Appraisal conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs, capital
improvements, tenant improvements and/or leasing commissions with respect to the
related Mortgaged Property.
"Residual Certificate": A Class R-I Certificate or Class R-II
Certificate.
"Resolution Extension Period": With respect any Mortgage Loan and
any Material Document Defect which would require the related Mortgage Loan
Seller to cure, repurchase or substitute for such Mortgage Loan pursuant to the
terms of the related Mortgage Loan Purchase Agreement:
(i) with respect to a Material Document Defect relating to any
Mortgage Loan that is not a Specially Serviced Mortgage Loan at any time
during the applicable Initial Resolution Period but becomes a Specially
Serviced Mortgage Loan during the period following the Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the earlier of: (i) the
90th day following the end of such Initial Resolution Period and (ii) the
45th day following the applicable Mortgage Loan Seller's receipt of
written notice from the Master Servicer or the Special Servicer of the
occurrence of any Servicing Transfer Event with respect to such Mortgage
Loan subsequent to the end of such Initial Resolution Period;
(ii) with respect to a Material Document Defect relating to any
Mortgage Loan that is not a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period but is subject to
a Servicing Transfer Event during such Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution Period
and ending on, and including, the 90th day following the applicable
Mortgage Loan Seller's receipt of written notice from the Master Servicer
or the Special Servicer of the occurrence of such Servicing Transfer
Event;
(iii) with respect to a Material Document Defect relating to any
Mortgage Loan that is a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, zero days,
provided that, if the applicable Mortgage Loan Seller did not receive
written notice from the Master Servicer or the Special Servicer of the
relevant Servicing Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer Event will be
deemed to have occurred during such Initial Resolution Period and clause
(ii) of this definition will be deemed to apply; and
(iv) with respect to any Mortgage Loan not covered by clauses (i),
(ii) or (iii) above, the ninety (90) day period following the end of the
applicable Initial Resolution Period.
"Responsible Officer": When used with respect to (i) the initial
Trustee or initial Paying Agent any officer or assistant officer in the
Corporate Trust Services Group or Asset-Backed Securities Trust Services Group
of the initial Trustee or initial Paying Agent, respectively, and (ii) any
successor Trustee or Paying Agent, any officer or assistant officer in the
Corporate Trust Department of the Trustee or Paying Agent, or any other officer
or assistant officer of the Trustee or Paying Agent customarily performing
functions similar to those performed by any of the above designated officers to
whom a particular matter is referred by the Trustee or Paying Agent because of
such officer's knowledge of and familiarity with the particular subject.
"Restricted Servicer Reports": Each of the Watch List, Operating
Statement Analysis, NOI Adjustment Worksheet and Comparative Financial Status
Report.
"S&P": Standard and Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc., or its successor in interest. If neither such
Rating Agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Paying Agent, the Master Servicer and the Special
Servicer, and specific ratings of S&P herein referenced shall be deemed to refer
to the equivalent ratings of the party so designated.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 or acceleration of principal by reason of default, and assuming that each
prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2 or Class IO
Certificate.
"Sequential Pay Certificates": Any Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N or Class O Certificate.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan (a) the Stated Principal Balance of such
Mortgage Loan as of the end of the immediately preceding Collection Period and
(b) the difference between the Master Servicing Fee Rate for such Mortgage Loan
over the servicing fee rate (if any) applicable to such Mortgage Loan as
specified in any Sub-Servicing Agreement related to such Mortgage Loan.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by or on behalf of the Master Servicer or
the Trustee in connection with the servicing of a Mortgage Loan or Companion
Loan, or in connection with the administration of any REO Property, including,
but not limited to, the cost of (a) compliance with the obligations of the
Master Servicer and the Special Servicer, if any, set forth in Section 3.02 and
Section 3.03(c), (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "forced placed"
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to Section 3.07(a),
(c) obtaining any Insurance Proceeds or any Liquidation Proceeds of the nature
described in clauses (i)-(v) of the definition of "Liquidation Proceeds," (d)
any enforcement or judicial proceedings with respect to a Mortgaged Property,
including, without limitation, foreclosures, (e) any Required Appraisal or other
appraisal expressly required or permitted to be obtained hereunder, (f) the
operation, management, maintenance and liquidation of any REO Property,
including, without limitation, appraisals and compliance with Section 3.16(a)
(to the extent not covered by available funds in the REO Account) and Section
3.20(h) (to the extent not paid by the related Mortgagor) and (g) compliance
with the obligations of the Master Servicer or the Trustee set forth in Section
2.03(a) or (b). Notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses or costs and expenses incurred by any such party in connection with its
purchase of a Mortgage Loan or REO Property, or costs or expenses expressly
required to be borne by the Master Servicer or Special Servicer without
reimbursement pursuant to the terms of this Agreement.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File),
including but not limited to original letters of credit and related transfer
documents, delivered by the related Mortgagor in connection with, or relating to
the origination and servicing of any Mortgage Loan or which are reasonably
required for the ongoing administration of the Mortgage Loan, including
appraisals, surveys, engineering reports, environmental reports, lockbox and
cash management agreements, financial statements, management agreements, leases,
rent rolls and tenant estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration of the
Mortgage Loans for which it is responsible hereunder (a) in the same manner in
which, and with the same care, skill, prudence and diligence with which, the
Master Servicer or the Special Servicer, as the case may be, generally services
and administers similar mortgage loans with similar borrowers (i) for other
third-parties, giving due consideration to customary and usual standards of
practice of prudent institutional commercial mortgage lenders servicing their
own loans or (ii) held in its own portfolio, whichever standard is higher, (b)
with a view to the maximization of the recovery on such Mortgage Loan on a net
present value basis and the best interests of the Certificateholders and the
Trust, and (c) without regard to (i) any relationship that the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof may have
with the related Mortgagor, the Depositor, any Mortgage Loan Seller or any other
party to the transaction; (ii) the ownership of any Certificate or Companion
Loan by the Master Servicer or the Special Servicer, as the case may be, or by
any Affiliate thereof; (iii) the right of the Master Servicer or the Special
Servicer, as the case may be, to receive compensation or other fees for its
services rendered pursuant to this Agreement; (iv) the obligations of the Master
Servicer to make Advances; (v) the ownership, servicing or management by the
Master Servicer or the Special Servicer or any Affiliate thereof for others of
any other mortgage loans or mortgaged property; (vi) any obligation of the
Master Servicer or any Affiliate of the Master Servicer to repurchase or
substitute a Mortgage Loan as a Mortgage Loan Seller; (vii) any obligation of
the Master Servicer or any Affiliate of the Master Servicer to cure a breach of
a representation and warranty with respect to a Mortgage Loan; and (viii) any
debt the Master Servicer or Special Servicer or any Affiliate of either has
extended to any Mortgagor; provided, however, that if GMAC Commercial Mortgage
Corporation is the Special Servicer, then the Special Servicing Standard shall
apply to the Special Servicer in lieu of the Servicing Standard set forth herein
and references to "Servicing Standard" in this Agreement as such references may
apply to GMAC Commercial Mortgage Corporation as Special Servicer shall be
deemed to be references to the "Special Servicing Standard".
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Reserve Account": A segregated custodial account or
accounts created and maintained by the Master Servicer pursuant to Section
2.02(d) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "First Union National Bank, as Master Servicer for Xxxxx Fargo
Bank Minnesota, N.A., as Trustee, in trust for the registered holders of First
Union National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1." Any such account shall be an Eligible Account. As
used herein, the Trustee may also create a segregated custodial account or
accounts pursuant to Section 2.02(d) in trust for the Certificateholders, which
shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in trust for
the registered holders of First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-C1."
"Special Servicer": GMAC Commercial Mortgage Corporation, or any
successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Special Servicing Standard": With respect to the Special Servicer
if GMAC Commercial Mortgage Corporation is the Special Servicer, the servicing
and administration of the Mortgage Loans for which it is responsible hereunder
on behalf of the Trustee and in the best interests of and for the benefit of the
Certificateholders (as determined by the Special Servicer in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows: (i) with the same care, skill
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; (ii) with a
view to the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans or, if a Mortgage Loan comes into and
continues in default and if, in the good faith and reasonable judgment of the
Special Servicer, no satisfactory arrangements can be made for the collection of
the delinquent payments, the maximization of the recovery on such Mortgage Loan
to the Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate); and (iii)
without regard to (A) any relationship that the Special Servicer or any
Affiliate thereof may have with the related Mortgagor, (B) the ownership of any
Certificate by the Special Servicer, or by any Affiliate thereof, (C) the
Special Servicer's obligation to direct the Master Servicer to make Servicing
Advances, and (D) the right of the Special Servicer (or any Affiliate thereof),
to receive reimbursement of costs, or the sufficiency of any compensation
payable to it, hereunder or with respect to any particular transaction.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events have occurred:
(a) the related Mortgagor shall have (i) failed to make when due any
Balloon Payment unless the Mortgagor continues to make the Assumed Scheduled
Payment and the Master Servicer or the Special Servicer, as the case may be, has
received written evidence acceptable to the Special Servicer or the Controlling
Class Representative from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan within 90 days (or 150 days with the
consent of the Controlling Class Representative) after the due date of such
Balloon Payment (provided that if such refinancing does not occur during such
time specified in the commitment, the related Mortgage Loan will immediately
become a Specially Serviced Mortgage Loan), or (ii) failed to make when due any
Periodic Payment (other than a Balloon Payment), and such failure has continued
unremedied for 60 days; or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the related Mortgagor, that a
default in making a Periodic Payment (or in the case of a Balloon Loan, the
Assumed Scheduled Payment) is likely to occur and is likely to remain unremedied
for at least 60 days; or
(c) there shall have occurred a default (other than as described in
clause (a) above) that the Master Servicer shall have determined, in its good
faith and reasonable judgement, materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan or otherwise materially adversely
affects the interests of Certificateholders and that continues unremedied beyond
the applicable grace period under the terms of the Mortgage Loan (or, if no
grace period is specified, for 60 days, provided, that a default that gives rise
to an acceleration right without any grace period shall be deemed to have a
grace period equal to zero); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
related Mortgagor; provided that if such decree or order is discharged,
dismissed or stayed within 60 days it shall not be a Specially Serviced Mortgage
Loan (and no Special Servicer Fees shall be payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property.
provided, however, that any Mortgage Loan that is cross-collateralized with a
Mortgage Loan that becomes a Specially Serviced Mortgage Loan (and which has not
otherwise become a Specially Serviced Mortgage Loan) shall also become a
Specially Serviced Mortgage Loan upon request by the Controlling Class
Representative in its sole discretion; provided, further, however, that a
Companion Loan shall be deemed to be a Specially Serviced Mortgage Loan pursuant
to Section 3.26(a); provided, further, however, that a Mortgage Loan will cease
to be a Specially Serviced Mortgage Loan:
(i) with respect to the circumstances described in clause (a) above,
when the related Mortgagor has made three consecutive full and timely
Periodic Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant
to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, when such circumstances cease to exist in the good
faith reasonable judgment of the Special Servicer and in accordance with
the Servicing Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan and provided no additional default is
foreseeable in the reasonable good faith judgment of the Special Servicer.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York and
North Carolina and by any other state or local taxing authorities as may, by
notice to the Trustee and the Paying Agent, assert jurisdiction over the trust
fund or any portion thereof, or which, according to an Opinion of Counsel
addressed to the Trustee and the Paying Agent, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount (which amount shall not be less than zero)
equal to (x) the Cut-off Date Balance of such Mortgage Loan (or, in the case of
a Qualified Substitute Mortgage Loan, the unpaid principal balance after
application of all principal payments due on or before the related date of
substitution, whether or not received), plus (y) any Mortgage Deferred Interest
added to the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Collection Period minus (z) the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received
from the Mortgagor or advanced by the Servicer and
distributed to Certificateholders on or before such date of
determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent
distributed to Certificateholders on or before such date of
determination;
(iii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds received with respect to such Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
and
(iv) any amount of reduction in the outstanding principal balance
of such Mortgage Loan resulting from a Deficient Valuation
that occurred prior to the end of the Collection Period for
the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to the predecessor Mortgage Loan on or after the date of the
related REO Acquisition, to the extent distributed to
Certificateholders on or before such date of determination;
and
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Revenues received with respect to such REO
Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
With respect to any Companion Loans on any date of determination,
the Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class R-I, Class R-II or Class Z Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer, on the one hand, and any Sub-Servicer, on the other hand, relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances of the related Qualified Substitute
Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Temporary
Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable State and Local Tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC II, and (ii) the Grantor Trust Assets.
"Trustee": Xxxxx Fargo Bank Minnesota, N.A., its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and REO Loan for
any Distribution Date, an amount equal to one month's interest for the most
recently ended calendar month (calculated on a 30/360 Basis), accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO
Loan, as the case may be, outstanding immediately following the prior
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Trustee Fee Rate": 0.0031% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the related
REMIC I Remittance Rate for such Distribution Date, accrued on the REMIC I
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to such Distribution Date and, to the extent permitted under applicable law,
also on any Uncertificated Accrued Interest in respect of such REMIC I Regular
Interest from the prior Distribution Dates that was not previously deemed paid.
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest shall
be calculated on a 30/360 Basis and, with respect to any REMIC I Regular
Interest for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
and the denominator of which is the aggregate Uncertificated Accrued Interest in
respect of all the REMIC I Regular Interests for such Distribution Date.
"Underwriter": Each of Deutsche Banc Alex. Xxxxx Inc., First Union
Securities, Inc. or ABN AMRO Incorporated or, in each case, its successor in
interest.
"United States Person": A citizen or resident of the United States,
a corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Updated Collection
Report, Delinquent Loan Status Report, Historical Loan Modification Report,
Historical Liquidation Report, Interim Delinquent Loan Status Report and REO
Status Report.
"Updated Collection Report": A report substantially containing the
content described in Exhibit F attached hereto and available each month on the
P&I Advance Date, setting forth each Mortgage Loan or REO Loan with respect to
which the Master Servicer received a Periodic Payment after the Determination
Date and before the P&I Advance Date for the related month.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates. Ninety-eight percent (98%) of the Voting
Rights shall be allocated among the Class X-0, Xxxxx X-0, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class O Certificates in proportion to the respective Class Principal
Balances of their Certificates; provided that, solely for the purpose of
determining the Voting Rights of the Classes of Sequential Pay Certificates, the
aggregate Appraisal Reduction Amount (determined as set forth herein) shall be
treated as Realized Losses with respect to the calculation of the Certificate
Principal Balances thereof; provided, further, however, that the aggregate
Appraisal Reduction Amount shall not reduce the Class Principal Balance of any
Class for purposes of determining the Controlling Class, the Controlling Class
Representative or the Majority Subordinate Certificateholder. Two percent (2%)
in the aggregate of the Voting Rights shall be allocated to the Class IO
Certificates (allocated, pro rata, between the Class IO-I and Class IO-II
Certificates based upon their Notional Amounts). The Class Z Certificates and
the Residual Certificates shall have no voting rights. Voting Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in standard proportion to the Percentage Interests evidenced
by their respective Certificates. In addition, if either the Master Servicer or
the Special Servicer is the holder of any Certificate, neither of the Master
Servicer or Special Servicer, in its capacity as a Certificateholder, shall have
Voting Rights with respect to matters concerning compensation affecting the
Master Servicer or the Special Servicer.
"Watch List": As of each Determination Date a report, substantially
in the form of Exhibit N attached hereto (or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally, identifying each
Mortgage Loan that is not a Specially Serviced Mortgage Loan (i) with a Debt
Service Coverage Ratio of less than 1.05x, other than Mortgage Loans whose
operating results for the first year of operations represent less than seven
months of operating history, (ii) that has a Stated Maturity Date occurring in
the next ninety days, (iii) that is delinquent in respect of its real estate
taxes, (iv) for which any outstanding Advance exists and has been outstanding
for 30 days or more, (v) that has been a Specially Serviced Mortgage Loan in the
past 90 days, (vi) for which the Debt Service Coverage Ratio has decreased by
more than 10% in the prior 12 months and is less than 1.40x, (vii) for which any
lease relating to more than 25% of the rentable area of the related Mortgaged
Property has expired, been terminated, is in default or will expire within the
next three months (without being replaced by one or more tenants or leases),
(viii) that is late in making its Periodic Payment three or more times in the
preceding twelve months, (ix) with material deferred maintenance at the related
Mortgaged Property that is delinquent in being repaired or maintained or (x)
that is 30 or more days delinquent; provided that a Mortgage Loan will not be
identified on the Watch List solely because the related Mortgagor has failed to
deliver operating statements, rent rolls or other financial statements required
to be delivered under the Mortgage Loan documents until such operating
statements, rent rolls or other financial statements are more than 60 days past
due or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective Net
Mortgage Rates applicable to the Mortgage Loans as of the first day of the
related Collection Period, weighted on the basis of their respective Stated
Principal Balances immediately following the preceding Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer shall be required to follow the terms and
provisions contained in the applicable Mortgage Note, provided, however, in the
event the particular Mortgage Note shall not specify the U.S. Treasuries which
shall be used in determining the discount rate or the reinvestment yield to be
applied in such calculation, the Master Servicer shall be required to use those
U.S. Treasuries having maturity dates most closely approximating the maturity of
such Mortgage Loan. Accordingly if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in The Wall Street Journal on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12X {(1+"BEY"/2)^1/6}-1) where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X {(1+ .055/2)^0.16667}-1) where
..055 is the decimal version of the percentage 5.5% and 0.16667 is the decimal
version of the exponential power. The MEY in the above calculation is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
----------------------------
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the rights of the Depositor under
Sections 2, 3, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of each of the First Union
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement and
the LaSalle Mortgage Loan Purchase Agreement and (iii) all other assets included
or to be included in the Trust Fund. Such assignment includes all interest and
principal received or receivable on or with respect to the Mortgage Loans and
due after the Cut-off Date. The transfer of the Mortgage Loans and the related
rights and property accomplished hereby is absolute and, notwithstanding Section
11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to the First
Union Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement and the LaSalle Mortgage Loan Purchase Agreement, as applicable, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby (with a copy to the Master Servicer and
Special Servicer), on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned and the Servicing File to the Master Servicer for each
Mortgage Loan so assigned. The Special Servicer may request the Master Servicer
to deliver a copy of the Servicing File for any Mortgage Loan (other than a
Specially Serviced Mortgage Loan which will not be at the expense of the Special
Servicer) at the expense of the Special Servicer. None of the Trustee, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by any Mortgage Loan Seller or the Depositor to comply with the document
delivery requirements of the First Union Mortgage Loan Purchase Agreement, the
GACC Mortgage Loan Purchase Agreement, the LaSalle Mortgage Loan Purchase
Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File", with evidence of recording thereon,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, the delivery
requirements of the First Union Mortgage Loan Purchase Agreement, the GACC
Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement, as applicable, and Section 2.01(b) shall be deemed to have been
satisfied as to such non-delivered document or instrument, and such
non-delivered document or instrument shall be deemed to have been included in
the Mortgage File, provided that a photocopy of such non-delivered document or
instrument (certified by the applicable Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof, with evidence of recording thereon, is delivered to the Trustee or such
Custodian within 120 days of the Closing Date (or within such longer period (not
to exceed 18 months) after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the applicable Mortgage
Loan Seller is, in good faith, attempting to obtain from the appropriate county
recorder's office such original or photocopy). If the applicable Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and (viii) of the definition of "Mortgage File," with evidence of
recording thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost, the delivery
requirements of the First Union Mortgage Loan Purchase Agreement, the GACC
Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement, as applicable, and Section 2.01(b) shall be deemed to have been
satisfied as to such non-delivered document or instrument and such non-delivered
document or instrument shall be deemed to have been included in the Mortgage
File, provided that a photocopy of such non-delivered document or instrument
(with evidence of recording thereon) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and recordable form any one of
the assignments in favor of the Trustee referred to in clause (iv) or (v) of the
definition of "Mortgage File", the applicable Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related First Union
Mortgage Loan Purchase Agreement, GACC Mortgage Loan Purchase Agreement or
LaSalle Mortgage Loan Purchase Agreement, as applicable, and Section 2.01(b) by
delivering with respect to such Mortgage Loan on the Closing Date an omnibus
assignment of such Mortgage Loan; provided that all required original
assignments with respect to such Mortgage Loan in fully complete and recordable
form shall be delivered to the Trustee or its Custodian within 120 days of the
Closing Date (or within such longer period as the Trustee in its discretion may
permit.
(d) With respect to the First Union Mortgage Loans, the Trustee
shall, for a fee paid to the Trustee by the Depositor on the Closing Date as to
each First Union Mortgage Loan, promptly (and in any event within 90 days
following the later of the Closing Date or the delivery date of all assignments
and UCC Financing Statements (including all recording information necessary to
complete the subject document) to the Trustee) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate and to the
extent timely delivered to the Trustee in final, recordable form, each
assignment of Mortgage, assignment of Assignment of Leases and any other
recordable documents (to the extent the Trustee has received notice from the
applicable Mortgage Loan Seller that such documents are to be recorded and
provided further that the Depositor shall reimburse the Trustee for reasonable
costs and expenses incurred for recording such other documents) relating to each
such Mortgage Loan, in favor of the Trustee referred to in clause (iv) of the
definition of "Mortgage File" and each UCC-2 and UCC-3 assignment in favor of
the Trustee and so delivered to the Trustee and referred to in clause (viii) of
the definition of "Mortgage File." Each such assignment, UCC-2 and UCC-3 shall
reflect that the recorded original should be returned by the public recording
office to the Trustee or its designee following recording, and each such UCC-2
and UCC-3 assignment shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original, at the expense of the
Depositor. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct First Union pursuant to the First Union Mortgage Loan Purchase Agreement,
to promptly prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. On a
monthly basis, the Trustee shall forward to the Master Servicer a copy of each
of the aforementioned recorded assignments following the Trustee's receipt
thereof, to the extent not previously provided.
With respect to the LaSalle Mortgage Loans and the GACC Mortgage
Loans, each of LaSalle and GACC is obligated pursuant to the terms of the
LaSalle Mortgage Loan Purchase Agreement or GACC Mortgage Loan Purchase
Agreement, as the case may be, to promptly (and in any event within 90 days
following the Closing Date) cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate, each assignment of Mortgage,
assignment of Assignment of Leases and any other recordable documents relating
to each such Mortgage Loan, in favor of the Trustee referred to in clause (iv)
of the definition of "Mortgage File" and each UCC-2 and UCC-3 assignment in
favor of the Trustee and so delivered to LaSalle or GACC, as the case may be,
and referred to in clause (viii) of the definition of "Mortgage File." Each such
assignment, UCC-2 and UCC-3 shall reflect that the recorded original should be
returned by the public recording office to LaSalle or GACC, as the case may be,
or its designee following recording, and each such UCC-2 and UCC-3 assignment
shall reflect that the file copy thereof should be returned to LaSalle or GACC,
as the case may be, or its designee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, LaSalle or GACC, as the case may
be, shall obtain therefrom a certified copy of the recorded original, at the
expense of the Depositor. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, LaSalle
or GACC, as the case may be, shall promptly prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and thereafter
LaSalle or GACC, as the case may be, shall upon receipt thereof cause the same
to be duly recorded or filed, as appropriate. On a monthly basis, LaSalle or
GACC, as the case may be, shall forward, or cause to be forwarded, to the Master
Servicer a copy, and to the Trustee the original, of the aforementioned recorded
assignments following LaSalle's or GACC's receipt thereof, to the extent not
previously provided.
(e) All documents and records in the Servicing File in possession of
the Depositor or the Mortgage Loan Sellers that relate to the Mortgage Loans and
that are not required to be a part of a Mortgage File in accordance with the
definition thereof (including any original letters of credit), together with all
Escrow Payments and Reserve Accounts in the possession thereof, shall be
delivered to the Master Servicer or such other Person as may be directed by the
Master Servicer (at the expense of the applicable Mortgage Loan Seller) on or
before the Closing Date and shall be held by the Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders; provided,
however, the Master Servicer shall have no responsibility for holding documents
created or maintained by the Special Servicer with respect to Specially Serviced
Mortgage Loans as required hereunder and not delivered to the extent required
herein to the Master Servicer.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date and hereby represents and warrants
that it has delivered a copy of a fully executed counterpart of each of the
First Union Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement and the LaSalle Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date.
SECTION 2.02 Acceptance of the Trust Fund by Trustee.
---------------------------------------
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
proviso at the end of the definition of "Mortgage File" and the provisions of
Section 2.01 and subject to the further limitations on review provided for in
Section 2.02(b) and the exceptions noted on the schedule of exceptions of (i)
the Mortgage File delivered to it for each Mortgage Loan and (ii) a copy of a
fully executed counterpart of each of the First Union Mortgage Loan Purchase
Agreement, the GACC Mortgage Loan Purchase Agreement and the LaSalle Mortgage
Loan Purchase Agreement, all in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and the other documents received by it that constitute portions
of the Mortgage Files, and that it holds and will hold the Mortgage Loans and
other assets included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders and, with respect to any
original document in the Mortgage File for a Loan Pair, any present or future
Companion Holder. The Trustee hereby certifies to each of the Depositor, the
Master Servicer, the Special Servicer and each Mortgage Loan Seller that except
as identified in the schedule of exceptions, which is attached hereto as Exhibit
C-1 without regard to the proviso in the definition of "Mortgage File", each of
the original executed Mortgage Notes and endorsements as described in clause (i)
of the definition of Mortgage File and the documents referred to in clauses
(ii), (vii), (ix) and (xi) of the definition of Mortgage File are in its
possession; provided that with respect to clause (ix) of the definition of
Mortgage File, the Trustee certification shall relate only to copies of ground
leases, and, with respect to clause (xi) of the definition of Mortgage File, the
Trustee's certification shall relate only to originals of any letter of credit
and transfer documents. The Trustee shall promptly deliver the letters of credit
and transfer documents to the Master Servicer and, promptly upon receipt of such
letters of credit and transfer documents, the Master Servicer shall promptly
deliver a certificate to the Trustee acknowledging such receipt. With respect to
the schedule of exceptions described in the preceding sentence, within fifteen
(15) Business Days of the Closing Date, with respect to the documents specified
in clauses (ii), (vii), (ix) (solely with respect to Ground Leases) and (xi)
(solely with respect to letters of credit) of the definition of Mortgage File,
the related Mortgage Loan Seller shall cure any exception listed therein (for
the avoidance of doubt, any deficiencies with respect to the documents specified
in clause (ii) resulting solely from a delay in the return of the related
documents from the applicable recording office, shall be cured in the time and
manner described in Section 2.01(c)). If such exception is not so cured, the
related Mortgage Loan Seller shall either (1) repurchase the related Mortgage
Loan, (2) with respect to exceptions relating to clause (xi) (solely with
respect to letters of credit) of the definition of "Mortgage File", deposit with
the Master Servicer an amount, to be held in a Special Reserve Account, equal to
the amount of the undelivered letter of credit (in the alternative, the related
Mortgage Loan Seller may deliver to the Master Servicer, with a certified copy
to the Trustee, a letter of credit for the benefit of the Master Servicer on
behalf of the Trustee and upon the same terms and conditions as the undelivered
letter of credit) which the Master Servicer on behalf of the Trustee may use (or
draw upon, as the case may be) under the same circumstances and conditions as
the Master Servicer would have been entitled to draw on the undelivered letter
of credit, or (3) with respect to any exceptions relating to clauses (ii) and
(vii), deposit with the Trustee an amount, to be held in trust in a Special
Reserve Account, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan. Any funds or letter of credit deposited pursuant to clauses (2)
and (3) shall be held pursuant to the related Mortgage Loan Purchase Agreement
by the Trustee or the Master Servicer, as applicable, until the earlier of (x)
the date on which the Master Servicer certifies to the Trustee and the
Controlling Class Representative that such exception has been cured (or the
Trustee certifies the same to the Controlling Class Representative), at which
time such funds or letter of credit, as applicable, shall be returned to the
related Mortgage Loan Seller and (y) thirty (30) Business Days after the Closing
Date; provided, however, that if such exception is not cured within such thirty
(30) Business Days, (A) in the case of clause (2), the Master Servicer shall
retain the funds on deposit in the related Special Reserve Account, or (B) in
the case of clause (3), the related Mortgage Loan Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of Section
2.03(b) or the related Mortgage Loan Purchase Agreement, at which time such
funds shall be applied to the Purchase Price of the related Mortgage Loan. Any
funds or letter of credit deposited pursuant to clauses (2) or (3) shall be
treated as an "outside reserve fund" for purposes of the REMIC Provisions, and
the related Mortgage Loan Seller shall be treated as the beneficial owner
thereof (and any amounts reimbursed by REMIC I or REMIC II) and shall be taxed
on any reinvestment income with respect to such funds.
(b) In addition, within ninety (90) days after the Closing Date (and
if any exceptions are noted, again every 90 days thereafter until the fourth
anniversary of the Closing Date, and thereafter annually until all exceptions
are cleared, the Trustee or the Custodian on its behalf will review the Mortgage
Files and certify (in a certificate substantially in the form of Exhibit C-2) to
each of the Depositor, the Master Servicer, the Special Servicer and each
Mortgage Loan Seller (with copies to the Majority Subordinate Certificateholder)
that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as specifically identified in the schedule of exceptions annexed thereto,
(i) without regard to the proviso in the definition of "Mortgage File," all
documents specified in clauses (i), (ii), (iv)(a), (v) and (vii), and to the
extent provided in the related Mortgage File and actually known by a Responsible
Officer of the Trustee to be required, clauses (iii), (iv)(b), (iv)(c), (vi),
(viii) and (ix) of the definition of "Mortgage File" are in its possession, (ii)
all documents delivered or caused to be delivered by the applicable Mortgage
Loan Seller constituting the related Mortgage File have been reviewed by it and
appear regular on their face and appear to relate to such Mortgage Loan, (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule for such Mortgage Loan with
respect to the items specified in clauses (v) and (vi)(c) of the definition of
"Mortgage Loan Schedule" is correct and (iv) solely with respect to the
Companion Loans, all documents specified in clause (xiii) of the definition of
Mortgage File are in its possession. Further, with respect to the documents
described in clause (viii) of the definition of Mortgage File, absent actual
knowledge to the contrary or copies of UCC Financing Statements delivered to the
Trustee as part of the Mortgage File indicating otherwise, the Trustee may
assume, for purposes of the certification delivered in this Section 2.02(a),
that the related Mortgage File should include one state level UCC Financing
Statement filing in the state of incorporation of the Mortgagor for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor). The UCC's to be assigned to the trust will be
delivered on new national forms and in recordable form and will be filed in the
state of incorporation as so indicated on the documents provided.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
(d) The Master Servicer may establish one or more Special Reserve
Accounts, each of which shall be an Eligible Account, and the Master Servicer or
its designee shall deposit any amount required to be deposited in a Special
Reserve Account within one Business Day of receipt. The Trustee may also
establish one or more Special Reserve Accounts, each of which shall be an
Eligible Account, and the Trustee or its designee shall deposit any amount
required to be deposited in a Special Reserve Account within one Business Day of
receipt. The related Mortgage Loan Seller may direct the Master Servicer or
Trustee, as applicable, to invest or cause the investment of the funds deposited
in the Special Reserve Account in one or more Permitted Investments that bear
interest or are sold at a discount and that mature, unless payable on demand, no
later than the Business Day prior to the next P&I Advance Date. The Master
Servicer or the Trustee, as applicable, shall act upon the written instructions
of the Mortgage Loan Seller with respect to the investment of the funds in the
Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate and timely written instructions from the related Mortgage
Loan Seller, the Master Servicer nor the Trustee shall have any obligation to
invest or direct the investment funds in such Special Reserve Account. All
income and gain realized from the investment of funds deposited in such Special
Reserve Account shall be for the benefit of the related Mortgage Loan Seller and
shall be withdrawn by the Master Servicer, the Trustee or their designees and
remitted to the related Mortgage Loan Seller on each P&I Advance Date (net of
any losses incurred), and the related Mortgage Loan Seller shall remit to the
Master Servicer or the Trustee from the related Mortgage Loan Seller's own funds
for deposit into such Special Reserve Account the amount of any Net Investment
Loss (net of Net Investment Earnings) in respect of such Permitted Investments
immediately upon realization of such Net Investment Losses and receipt of
written notice thereof from the Master Servicer or the Trustee, as applicable.
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of Representations and
Warranties.
(a) If any party hereto or the Controlling Class Representative
discovers or receives notice of a Document Defect or a Breach, the party
discovering such Document Defect or Breach shall give written notice (which
notice, in respect of any obligation of the Trustee to provide notice of a
Document Defect, shall be deemed given by the delivery of the certificate as
required by Section 2.02(a)) to the other parties hereto, to the Controlling
Class Representative and to the Rating Agencies of such Document Defect or
Breach. Promptly upon becoming aware of any Document Defect or Breach, if any
party hereto determines that such Document Defect or Breach is a Material
Document Defect or Material Breach, such party shall notify the Master Servicer
of such determination and promptly after receipt of such notice, the Master
Servicer shall request in writing (with a copy to the other parties hereto, the
Rating Agencies and the Controlling Class Representative) that the applicable
Mortgage Loan Seller, not later than ninety (90) days from receipt of such
written request (or, in the case of a Document Defect or Breach relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than ninety (90) days after any party to this Agreement
discovers such Document Defect or Breach) (i) cure such Document Defect or
Breach, as the case may be, in accordance with Section 3(c) of the First Union
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or
the LaSalle Mortgage Loan Purchase Agreement, as applicable, (ii) repurchase the
affected Mortgage Loan in accordance with Section 3(c) of the First Union
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or
the LaSalle Mortgage Loan Purchase Agreement, (iii) within two years of the
Closing Date, substitute a Qualified Substitute Mortgage Loan for such affected
Mortgage Loan and pay the Master Servicer for deposit into the Certificate
Account any Substitution Shortfall Amount in connection therewith in accordance
with Sections 3(c) and 3(d) of the First Union Mortgage Loan Purchase Agreement,
the GACC Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement, or (iv) at the sole discretion of the Controlling Class
Representative (so long as the Controlling Class Representative is not the
related Mortgage Loan Seller or an Affiliate thereof), provide to the Master
Servicer a letter of credit or deposit in a Special Reserve Account with the
Trustee an amount equal to 25% of the Stated Principal Balance of any Mortgage
Loan for which certain types of Material Document Defects relating to delay in
the return of documents from local filing or recording offices remain
uncorrected for 18 months following the Closing Date as provided in Section
2.02(a) and in conformity with the applicable Mortgage Loan Purchase Agreement;
provided, however, that if such Material Document Defect or Material Breach is
capable of being cured but not within such ninety (90) day period (the "Initial
Resolution Period"), such Material Document Defect or Material Breach does not
relate to the Mortgage Loan not being treated as a "qualified mortgage" within
the meaning of the REMIC Provision and the applicable Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach within such ninety (90) day period, the applicable
Mortgage Loan Seller shall have (x) with respect to any such Material Breach, an
additional ninety (90) days to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan (or related REO Loan) or substitute a
Qualified Substitute Mortgage Loan) and (y) with respect to any such Material
Document Defect, the applicable Resolution Extension Period to complete such
cure (or, failing such cure, to repurchase the related Mortgage Loan (or related
REO Loan) or substitute a Qualified Substitute Mortgage Loan); and provided,
further, with respect to such additional ninety (90) day period or Resolution
Extension Period, as applicable, the applicable Mortgage Loan Seller shall have
delivered an Officer's Certificate to the Trustee setting forth the reasons such
Document Defect or Breach is not capable of being cured within the initial
ninety (90) day period and what actions the applicable Mortgage Loan Seller is
pursuing in connection with the cure thereof and stating that the applicable
Mortgage Loan Seller anticipates such Material Document Defect or Material
Breach will be cured within the additional ninety (90) day period or Resolution
Extension Period, as applicable. For a period of four years from the Closing
Date, so long as there remains any Mortgage File as to which there is any
uncured Material Document Defect and so long as the applicable Mortgage Loan
Seller shall provide the Officer's Certificate pursuant to Section 3(c) of the
First Union Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement or the LaSalle Mortgage Loan Purchase Agreement, the Trustee shall on
a quarterly basis prepare and deliver to the other parties a written report as
to the status of such uncured Document Defects as provided in Section 2.02(a).
If the affected Mortgage Loan is to be repurchased or substituted, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price or the Substitution Shortfall Amount, as
applicable, are to be wired. Any such repurchase or substitution of a Mortgage
Loan shall be on a whole loan, servicing released basis.
If a repurchase obligation arises for any Mortgage Loan such
obligation shall extend to, and the related Mortgage Loan Seller shall
repurchase, any related Mortgage Loan cross-collateralized with the affected
Mortgage Loan; provided, that with respect to any Mortgage Loan the Mortgage
Loan Seller shall not be required to repurchase or substitute for the affected
Mortgage Loan for which the repurchase obligation has arisen, or all of the
related cross-collateralized Mortgage Loans, if the affected Mortgaged Property
may be released pursuant to the specific terms of any partial release provisions
in the related Mortgage Loan documents and the remaining Mortgaged Property(ies)
satisfies the requirements, if any, set forth in the Mortgage(s) for the
Mortgaged Property(ies) remaining after application of the partial release
provisions or, in the alternative, at the sole discretion of the Controlling
Class Representative (so long as the Controlling Class Representative is not the
related Mortgage Loan Seller or an Affiliate thereof), if the credit of the
remaining Mortgage Loans comprising the pool of cross-collateralized Mortgage
Loans shall be reasonably acceptable; provided, however, that in connection with
a partial release, the related Mortgage Loan Seller shall obtain an Opinion of
Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to REMIC I or REMIC II, endanger such
status or, unless such party determines in its sole discretion to indemnify the
Trust Fund against any resultant tax, result in the imposition of any tax.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request for
Release (in the form of Exhibit D-1 attached hereto) of a Servicing Officer of
the Master Servicer certifying as to the receipt of the applicable Purchase
Price(s) in the Certificate Account (in the case of any such repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the Certificate
Account and upon the delivery of the Mortgage File(s) and the Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively (in the case of any such substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it, in each case without recourse, representation or warranty, as
shall be necessary to vest in the applicable Mortgage Loan Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or deleted Mortgage Loan,
as applicable, being released pursuant to this Section 2.03, and (ii) the
Trustee, the Custodian, the Master Servicer, and the Special Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to each of them of
a receipt executed by the applicable Mortgage Loan Seller, all portions of the
Mortgage File and other documents pertaining to each such Mortgage Loan
possessed by it and the Master Servicer and the Special Servicer shall release
to the applicable Mortgage Loan Seller any Escrow Payments and Reserve Funds
held by it in respect of such repurchased or deleted Mortgage Loan; provided,
that such tender by the Trustee or the Custodian shall be conditioned upon its
receipt from the Master Servicer or the Special Servicer of a Request for
Release. Thereafter, the Trustee, the Custodian, the Master Servicer and the
Special Servicer shall have no further responsibility with regard to the related
repurchased Mortgage Loan(s) or deleted Mortgage Loan(s), as applicable, and the
related Mortgage File(s) and Servicing File(s). The Master Servicer shall, and
is hereby authorized and empowered by the Trustee to, prepare, execute and
deliver in its own name, on behalf of the Certificateholders and the Trustee or
any of them, the endorsements and assignments contemplated by this Section 2.03,
and the Trustee shall execute any powers of attorney that are prepared and
delivered to the Trustee by the Master Servicer and are necessary to permit the
Master Servicer to do so. The Master Servicer shall indemnify the Trustee for
any reasonable costs, fees, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse by the Master Servicer of such
powers of attorney. At the time a substitution is made, the related Mortgage
Loan Purchase Agreement will provide that the Mortgage Loan Seller shall deliver
the related Mortgage File to the Trustee and certify that the substitute
Mortgage Loan is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Periodic Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I. No substitution
of a Qualified Substitute Mortgage Loan for a deleted Mortgage Loan shall be
permitted under this Agreement if after such substitution, the aggregate of the
Stated Principal Balances of all Qualified Substitute Mortgage Loans which have
been substituted for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of all the Mortgage Loans. Periodic Payments due with respect to
any Qualified Substitute Mortgage Loan on or prior to the related date of
substitution shall not be part of the Trust Fund or REMIC I and will (to the
extent received by the Master Servicer) be remitted by the Master Servicer to
the applicable Mortgage Loan Seller promptly following receipt.
(d) Notwithstanding anything herein to the contrary, the First Union
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement and
the LaSalle Mortgage Loan Purchase Agreement provide the sole remedies available
to the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach with respect to the Mortgage Loans
purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Sellers under
Section 3 of the First Union Mortgage Loan Purchase Agreement, the GACC Mortgage
Loan Purchase Agreement and the LaSalle Mortgage Loan Purchase Agreement.
Nothing in this Agreement shall prohibit the Special Servicer from pursuing any
course of action authorized by this Agreement while the Certificateholders, or
the Trustee on behalf of the Certificateholders, asserts a claim or brings a
cause of action to enforce the rights set forth in the First Union Mortgage Loan
Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or the LaSalle
Mortgage Loan Purchase Agreement against the related Mortgage Loan Seller. In
the event that a Mortgage Loan or REO Property is liquidated during the period
of time in which any action with respect to a claim is ongoing pursuant to this
Section 2.03, if a court of competent jurisdiction issues a final order that the
related Mortgage Loan Seller is or was obligated to repurchase such Mortgage
Loan or REO Loan or REO Property or such Mortgage Loan Seller otherwise accepts
liability in connection therewith, then, after the expiration of any applicable
appeal period, but in no event later than the termination of the Trust Fund,
such Mortgage Loan Seller will be obligated to pay to the Trust Fund the amount,
if any, by which the applicable Purchase Price exceeds any Liquidation Proceeds
received upon a liquidation of such Mortgage Loan; provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys' fee) related thereto. For the avoidance of
doubt, the Special Servicer shall be entitled to a Principal Recovery Fee based
upon any Liquidation Proceeds received pursuant to this Section 2.03 as provided
in the third paragraph of Section 3.11(c), but not on the amount paid by the
applicable Mortgage Loan Seller as the excess of the Purchase Price over the
Liquidation Proceeds previously received as described in the immediately
preceding sentence.
(f) Notwithstanding the foregoing, if there exists a Breach
relating to whether or not the Mortgage Loan documents or any particular
Mortgage Loan document requires the related Mortgagor to bear the costs and
expenses associated with any particular action or matter under such Mortgage
Loan document(s) with respect to matters described in Representations 23 and 27
of the First Union Mortgage Loan Purchase Agreement, the GACC Mortgage Loan
Purchase Agreement or the LaSalle Mortgage Loan Purchase Agreement, then the
Master Servicer shall (and the Special Servicer may) direct the related Mortgage
Loan Seller in writing to wire transfer to the Certificate Account, within 90
days of such Mortgage Loan Seller's receipt of such direction, the amount of any
such costs and expenses borne by the Trust Fund that are the basis of such
Breach. Upon its making such deposit, the related Mortgage Loan Seller shall be
deemed to have cured such Breach in all respects. Provided such payment is made
in full, this paragraph describes the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Breach and
the related Mortgage Loan Seller shall not be obligated to repurchase the
affected Mortgage Loan on account of such Breach or otherwise cure such Breach.
Amounts deposited in the Certificate Account pursuant to this paragraph shall be
used for the reimbursement or payment of costs related to such Breach.
Notwithstanding anything herein to the contrary, the parties hereto
understand and agree that if a Material Document Defect or a Material Breach
existed with respect to any Mortgage Loan at the time it became an REO Loan and
either (i) the related Mortgage Loan Seller had discovered or been notified of
such Material Document Defect or Material Breach at least 90 days prior to such
Mortgage Loan's becoming an REO Mortgage Loan or (ii) such Material Document
Defect or Material Breach, regardless of whether it was yet discovered as of the
date that such Mortgage Loan became an REO Loan, materially and adversely
affects the value of the related REO Property or material additional collateral
or the interests of the Trust Fund or any Certificateholder therein, then the
related Mortgage Loan Seller, in accordance with the First Union Mortgage Loan
Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or LaSalle
Mortgage Loan Purchase Agreement, shall have the same cure/repurchase rights and
obligations with respect to such Material Document Defect or Material Breach and
such related REO Property or material additional collateral as it would have had
with respect to the affected Mortgage Loan, if it were still outstanding.
If there exists with respect to any REO Property an alleged Material
Breach or Material Document Defect, then in the event of a potential sale of
such REO Property, the Special Servicer shall promptly notify the related
Mortgage Loan Seller in writing of any offer that it receives to purchase such
REO Property. Upon the receipt of such notice by such Mortgage Loan Seller, such
Mortgage Loan Seller shall have the right to purchase such REO Property from the
Trust Fund at a purchase price equal to the amount of such offer. Such Mortgage
Loan Seller shall have three (3) Business Days from the date that it was
notified of such offer to purchase such REO Property. The Special Servicer shall
provide such Mortgage Loan Seller with any appraisal or other third-party
reports relating to such REO Property within its possession to enable the
related Mortgage Loan Seller to evaluate such REO Property. Any sale of a
Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of any related
REO Property, to a Person other than the related Mortgage Loan Seller shall be
(i) without recourse of any kind (either expressed or implied) by such Person
against such Mortgage Loan Seller and (ii) without representation or warranty of
any kind (either expressed or implied) by such Mortgage Loan Seller to or for
the benefit of such Person. For the avoidance of doubt, the Special Servicer
shall be entitled to a Principal Recovery Fee based on any Liquidation Proceeds
received pursuant to this Section 2.03 as provided in the third paragraph of
Section 3.11(c).
SECTION 2.04 Representations and Warranties of Depositor.
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(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Master
Servicer, the Paying Agent and the Special Servicer, as of the Closing Date,
that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation
or bylaws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to
the Trust Fund pursuant to this Agreement, (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans and all servicing rights pertaining
thereto.
(ix) The Depositor is transferring the Mortgage Loans to the Trust
Fund free and clear of any liens, pledges, charges and security interests.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties.
SECTION 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC I
by Trustee.
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The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Mortgage Loans
and the other property comprising REMIC I to the Trustee for the benefit of the
Holders of the Class R-I Certificates and REMIC II as the holder of the REMIC I
Regular Interests. The Trustee acknowledges the assignment to it of the Mortgage
Loans and the other property comprising REMIC I and declares that it holds and
will hold the same in trust for the exclusive use and benefit of all present and
future Holders of the Class R-I Certificates and REMIC II as the holder of the
REMIC I Regular Interests.
SECTION 2.06 Execution, Authentication and Delivery of Class R-I
Certificates.
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The Certificate Registrar, pursuant to the written request of the
Depositor executed by an officer of the Depositor, has executed, and the
Authenticating Agent has authenticated and delivered to or upon the order of the
Depositor, the Class R-I Certificates in authorized denominations.
SECTION 2.07 Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee.
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The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the respective Holders of the REMIC
II Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
SECTION 2.08 Execution, Authentication and Delivery of REMIC II
Certificates.
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Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, and pursuant to the written request
of the Depositor, executed by an affiliate of the Depositor, the Certificate
Registrar, has executed, and the Authenticating Agent, has authenticated and
delivered to or upon the order of the Depositor, the REMIC II Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC II.
The rights of the holders of the respective Classes of REMIC II Certificates to
receive distributions from the proceeds of REMIC II in respect of their REMIC
II, and all ownership interests evidenced or constituted by the respective
Classes of REMIC II Certificates in such distributions, shall be as set forth in
this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
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(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders in accordance with any and all applicable laws, the
terms of this Agreement, the terms of the respective Mortgage Loans and, to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Mortgage Loans that are not Specially
Serviced Mortgage Loans, and (ii) the Special Servicer shall service and
administer each Specially Serviced Mortgage Loan and REO Property and shall
render such services with respect to all Mortgage Loans and REO Properties as
are specifically provided for herein; provided, that the Master Servicer shall
continue to receive payments, make all calculations, and prepare, or cause to be
prepared, all reports required hereunder with respect to the Specially Serviced
Mortgage Loans, except for the reports specified herein as prepared by the
Special Servicer, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect to
such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, however, that the Master Servicer shall
not be liable for its failure to comply with such duties insofar as such failure
results from a failure by the Special Servicer to provide sufficient information
to the extent required herein to the Master Servicer to comply with such duties
or failure by the Special Servicer to otherwise comply with its obligations
hereunder; provided, further, however, that the Special Servicer shall not be
liable for its failure to comply with such duties insofar as such failure
results from a failure by the Master Servicer to provide sufficient information
to the extent required herein to the Special Servicer to comply with such duties
or failure by the Master Servicer to otherwise comply with its obligations
hereunder. All references herein to the respective duties of the Master
Servicer and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master Servicer
and the Special Servicer each shall have full power and authority, acting alone,
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable. Without limiting
the generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Section 3.20 and Section 6.11, any
and all modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; (iii) any and all instruments
of satisfaction or cancellation, or of partial or full release, discharge, or
assignment, and all other comparable instruments; and (iv) pledge agreements and
other defeasance documents in connection with a defeasance contemplated pursuant
to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written
request of the Master Servicer or the Special Servicer, promptly execute any
limited powers of attorney and other documents furnished by the Master Servicer
or the Special Servicer that are necessary or appropriate to enable them to
carry out their servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any misuse of any such
power of attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee, and unless the same Person acts in both capacities, to
each other, under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Unless the same Person acts as both Master Servicer and Special Servicer, the
Master Servicer shall not be responsible for the duties or actions of or failure
to act by the Special Servicer and the Special Servicer shall not be responsible
for the duties or actions of or the failure to act by the Master Servicer.
SECTION 3.02 Collection of Mortgage Loan Payments.
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(a) Each of the Master Servicer or the Special Servicer (with
respect to Specially Serviced Mortgage Loans) shall undertake reasonable efforts
consistent with the Servicing Standard to collect all payments required under
the terms and provisions of the Mortgage Loans it is obligated to service
hereunder and shall, to the extent such procedures shall be consistent with this
Agreement, follow such collection procedures in accordance with the Servicing
Standard; provided, however, that nothing herein contained shall be construed as
an express or implied guarantee by the Master Servicer or the Special Servicer
of the collectability of the Mortgage Loans; provided, further, that with
respect to the Mortgage Loans that have Anticipated Repayment Dates, so long as
the related Mortgagor is in compliance with each provision of the related
Mortgage Loan documents, the Master Servicer and Special Servicer (including the
Special Servicer in its capacity as a Certificateholder if it is a
Certificateholder) shall not take any enforcement action with respect to the
failure of the related Mortgagor to make any payment of Additional Interest or
principal in excess of the principal component of the constant Periodic Payment,
other than requests for collection, until the maturity date of the related
Mortgage Loan; provided, that the Master Servicer or Special Servicer, as the
case may be, may take action to enforce the Trust Fund's right to apply excess
cash flow to principal in accordance with the terms of the Mortgage Loan
documents. Consistent with the foregoing and subject to Section 3.20, the
Special Servicer, with regard to a Specially Serviced Mortgage Loan, or the
Master Servicer, with regard to a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, may waive any Penalty Interest or late payment charge in
connection with any payment on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan in the
form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage (and, with
respect to a Loan Pair, the related CLF Intercreditor Agreement) or, if required
pursuant to the express provisions of the related Mortgage, or as determined by
the Master Servicer or Special Servicer in accordance with the Servicing
Standard, to the repair or restoration of the related Mortgaged Property, and,
in the absence of such express provisions, shall be applied for purposes of this
Agreement: first, as a recovery of any related and unreimbursed Advances plus
unreimbursed interest accrued thereon; second, as a recovery of accrued and
unpaid interest at the related Mortgage Rate on such Mortgage Loan, to the
extent such amounts have not been previously advanced, and exclusive of any
portion thereof that constitutes Additional Interest; third, as a recovery of
principal of such Mortgage Loan then due and owing, to the extent such amounts
have not been previously advanced, including, without limitation, by reason of
acceleration of the Mortgage Loan following a default thereunder; fourth, in
accordance with the normal servicing practices of the Master Servicer or Special
Servicer, as a recovery of any other amounts then due and owing under such
Mortgage Loan (other than Additional Interest), including, without limitation,
Prepayment Premiums, Yield Maintenance Charges and Penalty Interest; fifth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and sixth, with respect to any ARD
Loan after its Anticipated Repayment Date, as a recovery of any unpaid
Additional Interest. All amounts collected on any Mortgage Loan in the form of
Liquidation Proceeds of the nature described in clauses (iv) through (vi) of the
definition thereof shall be deemed to be applied: first, as a recovery of any
related and unreimbursed Advances plus interest accrued thereon; second, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan to but not including the Due Date in the Collection Period of
receipt, to the extent such amounts have not been previously advanced, and
exclusive of any portion thereof that constitutes Additional Interest; third, as
a recovery of principal, to the extent such amounts have not been previously
advanced, of such Mortgage Loan to the extent of its entire unpaid principal
balance; and fourth, with respect to any ARD Loan after its Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest. No such amounts
shall be applied to the items constituting additional servicing compensation as
described in the first sentence of Section 3.11(b) or 3.11(d) unless and until
all principal and interest then due and payable on such Mortgage Loan has been
collected. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof. The provisions of this paragraph with
respect to the application of amounts collected on any Mortgage Loan shall not
alter in any way the right of the Master Servicer, the Special Servicer or any
other Person to receive payments from the Certificate Account as set forth in
clauses (ii) through (xiv) of Section 3.05(a) from amounts so applied.
(c) Within 60 days after the Closing Date, the Master Servicer shall
notify the Lease Enhancement Policy Insurer that (i) both the Master Servicer
and the Special Servicer shall be sent notices under the Lease Enhancement
Policy and (ii) Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered
holders of the First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002-C1, shall be named the insured
party under each Lease Enhancement Policy. In the event that the Master Servicer
has actual knowledge of an Insured Event under any Lease Enhancement Policy, the
Master Servicer shall notify the Special Servicer thereof within three Business
Days after learning of such event. With respect to each Lease Enhancement
Policy, the Master Servicer and the Special Servicer (only following a Servicing
Transfer Event with respect to a Mortgage Loan with a Lease Enhancement Policy)
shall each review and familiarize itself with the terms and conditions relating
to enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy. The Master Servicer, with
respect to non-Specially Serviced Mortgage Loans, or the Special Servicer, with
respect to Specially Serviced Mortgage Loans, shall prepare and file a "proof of
loss" form with the Lease Enhancement Policy Insurer, as the case may be, within
five Business Days after receiving notice or obtaining actual knowledge of any
Insured Event under the related policy and shall diligently process any claims
under such policy in accordance with the Servicing Standard. The Special
Servicer (with respect to Specially Serviced Mortgage Loans) or the Master
Servicer (with respect to non-Specially Serviced Mortgage Loans) shall abide by
the terms and conditions relating to enforcing claims and monitor the dates by
which any claim or action must be taken (including delivering any notices to the
Lease Enhancement Policy Insurer or performing any actions required under each
policy) under the Lease Enhancement Policy to realize the full value of such
Lease Enhancement Policy, as applicable, for the benefit of the
Certificateholders. The Special Servicer shall give written notice to the Master
Servicer of any claim made under any Lease Enhancement Policy and of any Policy
Termination Event of which the Master Servicer does not already have written
notice and the Master Servicer shall give written notice to the Special Servicer
of any claim made under any Lease Enhancement Policy and of any Policy
Termination Event of which the Special Servicer does not already have written
notice.
(d) In the event that the Master Servicer or the Special Servicer
receives notice of any Policy Termination Event, the Master Servicer or the
Special Servicer, as applicable, shall, within three Business Days after receipt
of such notice, notify the Master Servicer or Special Servicer, as applicable,
the Trustee and the Rating Agencies of such Policy Termination Event in writing.
Upon receipt of such notice, The Master Servicer, with respect to non-Specially
Serviced Mortgage Loans, or the Special Servicer, with respect to Specially
Serviced Mortgage Loans, shall address such Policy Termination Event in
accordance with the Servicing Standard. Any legal fees incurred in connection
with a resolution of a Policy Termination Event shall be paid by the Master
Servicer as a Servicing Advance or if such advance is deemed to be a
Nonrecoverable Advance such fees shall be reimbursable to it as an Additional
Trust Fund Expense from the Certificate Account pursuant to Section 3.05(a).
(e) Within the later of (i) 60 days after the Closing Date and (ii)
10 Business Days of delivery of any letter of credit transfer documents, the
Master Servicer shall notify each provider of a letter of credit for each
Mortgage Loan identified as having a letter of credit on the Mortgage Loan
Schedule, that the Master Servicer or the Special Servicer on behalf of the
Trustee for the benefit of the Certificateholders shall be the beneficiary under
each such letter of credit.
(f) In the event that the Master Servicer or Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that the Master Servicer or Special Servicer will be
receiving Additional Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will promptly notify the Trustee and the Paying
Agent. Subject to the provisions of Section 3.02(a) hereof, none of the Master
Servicer, the Trustee, the Paying Agent nor the Special Servicer shall be
responsible for any such Additional Interest not collected after notice from the
related Mortgagor.
(g) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan Documents, the Master Servicer shall, to the extent consistent with the
Servicing Standard, hold such escrows, letters of credit and proceeds thereof as
additional collateral and not apply such items to reduce the principal balance
of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan Documents.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
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(a) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), into which all
Escrow Payments shall be deposited and retained, and shall administer such
accounts in accordance with the terms of the Mortgage Loan documents. Each
Servicing Account shall be an Eligible Account. Withdrawals of amounts so
collected from a Servicing Account may be made (to the extent amounts have been
escrowed for such purpose) only to: (i) effect payment of items for which Escrow
Payments were collected and comparable items; (ii) reimburse the Master Servicer
or the Trustee for any unreimbursed Servicing Advances; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest, if
required and as described below, to Mortgagors on balances in the Servicing
Account; (v) pay itself interest and investment income on balances in the
Servicing Account as described in Section 3.06(b), if and to the extent not
required by law or the terms of the applicable Mortgage Loan to be paid to the
Mortgagor; (vi) withdraw amounts deposited in error or (vii) clear and terminate
the Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable Mortgage Loan,
funds in the Servicing Accounts may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06 and in accordance with the terms
of the related Mortgage Loan documents. The Master Servicer shall pay or cause
to be paid to the Mortgagors interest, if any, earned on the investment of funds
in Servicing Accounts maintained thereby, if required by law or the terms of the
related Mortgage Loan. If the Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. The Servicing Accounts shall not be considered part of
the segregated pool of assets constituting REMIC I, REMIC II or the Grantor
Trust.
(b) The Master Servicer (or the Special Servicer for Specially
Serviced Mortgage Loans and REO Loans) shall (i) maintain accurate records with
respect to the related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date and, in any
event, prior to the institution of foreclosure or similar proceedings with
respect to the related Mortgaged Property for nonpayment of such items. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments (at the direction of the Special Servicer
for Specially Serviced Mortgage Loans and REO Loans) as allowed under the terms
of the related Mortgage Loan or, if such Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Master
Servicer shall, as to all Mortgage Loans, use reasonable efforts consistent with
the Servicing Standard to enforce the requirement of the related Mortgage that
the Mortgagor make payments in respect of such items at the time they first
become due, and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items.
(c) The Master Servicer shall, as to all Mortgage Loans, subject to
Section 3.01(d), make a Servicing Advance with respect to the related Mortgaged
Property in an amount equal to all such funds as are necessary for the purpose
of effecting the payment of (i) real estate taxes, assessments, penalties and
other similar items, (ii) ground rents (if applicable), and (iii) premiums on
Insurance Policies in each instance if and to the extent Escrow Payments (if
any) collected from the related Mortgagor are insufficient to pay such item when
due and the related Mortgagor has failed to pay such item on a timely basis;
provided that the Master Servicer shall not make any Servicing Advance prior to
the penalty date or cancellation date, as applicable, if the Master Servicer
reasonably anticipates in accordance with the Servicing Standard that the
Mortgagor will pay such amount on or before the penalty date or cancellation
date, and provided, further, that the Master Servicer shall not be obligated to
make any Servicing Advance that would, if made, constitute a Nonrecoverable
Servicing Advance. All such Servicing Advances shall be reimbursable in the
first instance from related collections from the Mortgagors, and further as
provided in Section 3.05(a). No costs incurred by the Master Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of such Mortgaged Properties shall, for purposes
of this Agreement, including, without limitation, the Paying Agent's calculation
of monthly distributions to Certificateholders, be added to the unpaid Stated
Principal Balances of the related Mortgage Loans, notwithstanding that the terms
of such Mortgage Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
The Special Servicer shall give the Master Servicer and the Trustee
not less than five Business Days' notice with respect to Servicing Advances to
be made on any Specially Serviced Mortgage Loan or REO Property, before the date
on which the Master Servicer is required to make any Servicing Advance with
respect to a given Mortgage Loan or REO Property; provided, however, that only
two Business Days' notice shall be required in respect of Servicing Advances
required to be made on an urgent or emergency basis (which may include, without
limitation, Servicing Advances required to make tax or insurance payments). In
addition, the Special Servicer shall provide the Master Servicer and the Trustee
with such information in its possession as the Master Servicer or the Trustee,
as applicable, may reasonably request to enable the Master Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance. Any request by the Special
Servicer that the Master Servicer make a Servicing Advance shall be deemed to be
a determination by the Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Servicing Advance, and the Master Servicer shall be
entitled to conclusively rely on such determination. On the fourth Business Day
before each Distribution Date, the Special Servicer shall report to the Master
Servicer the Special Servicer's determination as to whether any Servicing
Advance previously made with respect to a Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable Servicing Advance. The Master Servicer shall be
entitled to conclusively rely on such a determination.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made (or such shorter period as may be necessary to avoid a
foreclosure of liens for delinquent real estate taxes or a lapse in insurance
coverage), the Trustee shall, if a Responsible Officer of the Trustee has actual
knowledge of such failure on the part of the Master Servicer, give written
notice of such failure to the Master Servicer. If such Servicing Advance is not
made by the Master Servicer within three Business Days after such notice then
(subject to a determination that such Servicing Advance would not be a
Nonrecoverable Servicing Advance) the Trustee shall make such Servicing Advance.
Any failure by the Master Servicer to make a Servicing Advance required to be
made hereunder shall constitute an Event of Default by the Master Servicer
subject to and as provided in Section 7.01 unless the Trust Fund suffers no loss
with respect to the related Mortgage Loan as a result of the Master Servicer's
failure and the Master Servicer reimburses the Trust Fund for any penalties
related to the payment of the delinquent taxes or cures the lapse in insurance
coverage, as applicable.
(d) In connection with its recovery of any Servicing Advance from
the Certificate Account pursuant to Section 3.05(a), each of the Master Servicer
and the Trustee shall be entitled to receive, out of any amounts then on deposit
in the Certificate Account, any unpaid interest at the Reimbursement Rate (or,
with respect to the AB Mortgage Loans and related Companion Loans, the rate
provided in the CLF Intercreditor Agreement) in effect from time to time,
compounded annually, accrued on the amount of such Servicing Advance (to the
extent made with its own funds) from the date made to but not including the date
of reimbursement such interest to be payable, subject to the terms of a CLF
Intercreditor Agreement with respect to the related Loan Pair, first out of late
payment charges and Penalty Interest received on the related Mortgage Loan or
REO Property, and to the extent that such late payment charges and Penalty
Interest are insufficient, but only after or at the same time the related
Advance has been or is reimbursed pursuant to this Agreement, then from general
collections (other than late payment charges and Penalty Interest) on the
Mortgage Loans then on deposit in the Certificate Account. The Master Servicer
shall reimburse itself or the Trustee, as applicable, for any outstanding
Servicing Advance made thereby as soon as practicable after funds available for
such purpose have been received by the Master Servicer, and in no event shall
interest accrue in accordance with this Section 3.03(d) on any Servicing Advance
as to which the corresponding Escrow Payment or other similar payment by the
Mortgagor was received by the Master Servicer on or prior to the date the
related Servicing Advance was made. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer or the Trustee be entitled to
reimbursement from funds on deposit in the Certificate Account for any Servicing
Advance made solely with respect to any Companion Loan.
(e) The determination by the Master Servicer that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee and the Depositor, setting forth
the basis for such determination, together with a copy of any Appraisal (the
cost of which may be paid out of the Certificate Account pursuant to Section
3.05(a)) of the related Mortgaged Property or REO Property, as the case may be;
which Appraisal shall be conducted pursuant to Section 3.09(a) by the Master
Servicer, or by or on behalf of the Special Servicer if the Mortgage Loan is a
Specially Serviced Mortgage Loan or, if no such Appraisal has been performed, a
copy of an Appraisal of the related Mortgaged Property or REO Property,
performed within the twelve months preceding such determination and the party
delivering such appraisal has no actual knowledge of a material adverse change
in the condition or value of the related Mortgaged Property that would draw into
question the applicability of such Appraisal, by an Independent Appraiser or
other expert in real estate matters, and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property and any engineers' reports, environmental
surveys or similar reports that the Master Servicer or the Special Servicer may
have obtained and that support such determination. The Trustee shall be entitled
to rely, conclusively, on any determination by the Master Servicer or the
Special Servicer that a Servicing Advance, if made, would be a Nonrecoverable
Advance; provided, however, that if the Master Servicer has failed to make a
Servicing Advance for reasons other than a determination by the Master Servicer
that such Servicing Advance would be a Nonrecoverable Advance, the Trustee shall
make such Servicing Advance within the time periods required by Section 3.03(c)
unless the Trustee in good faith, makes a determination that such Servicing
Advance would be a Nonrecoverable Advance.
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related environmental remediation, repairs
and/or capital improvements at the related Mortgaged Property if the repairs
and/or capital improvements have been completed, and such withdrawals are made
in accordance with the Servicing Standard and the terms of the related Mortgage
Note, Mortgage and any agreement with the related Mortgagor governing such
Reserve Funds and any other items for which such Reserve Funds were intended
pursuant to the loan documents and (ii) to pay the Master Servicer interest and
investment income earned on amounts in the Reserve Accounts as described below
if permitted under the related Mortgage Loan documents. To the extent permitted
in the applicable Mortgage, funds in the Reserve Accounts to the extent invested
may be only invested in Permitted Investments in accordance with the provisions
of Section 3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve
Accounts shall not be considered part of the segregated pool of assets
comprising REMIC I, REMIC II or the Grantor Trust. Consistent with the Servicing
Standard, the Master Servicer may waive or extend the date set forth in any
agreement governing such Reserve Funds by which the required repairs and/or
capital improvements at the related Mortgaged Property must be completed.
SECTION 3.04 Certificate Account, Interest Reserve Account, the
Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Companion
Distribution Account.
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(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within one Business Day of receipt
of available funds (in the case of payments by Mortgagors or other collections
on the Mortgage Loans or Companion Loans) or as otherwise required hereunder,
the following payments and collections received or made by the Master Servicer
or on its behalf subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans or Companion Loans due and payable
on or before the Cut-off Date, which payments shall be delivered promptly to the
applicable Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse), other than amounts
received from Mortgagors which are to be used to purchase defeasance collateral,
or payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans or
Companion Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Additional Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Liquidation Proceeds described in clause (vi) of the definition thereof
that are required to be deposited in the Distribution Account pursuant to
Section 9.01) received in respect of any Mortgage Loan or Companion Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls;
(x) any amount required to be deposited by the Master Servicer
pursuant to Section 3.03(d) and 4.03(d) in connection with reimbursing the
Trust Fund for interest paid on a P&I Advance or Servicing Advance or for
Additional Trust Fund Expenses, as applicable; and
(xi) any amount paid by a Mortgagor to cover items for which a
Servicing Advance has been previously made and for which the Master
Servicer, Special Servicer or the Trustee, as applicable, has been
previously reimbursed out of the Certificate Account.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and (d), need not be deposited by the Master Servicer in the Certificate
Account. If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional servicing compensation in accordance with Section
3.11(d), assumption fees, late payment charges (to the extent not applied to pay
interest on Advances or Additional Trust Fund Expenses as provided in Sections
3.03(d) or 4.03(d)) and other transaction fees or other expenses received by the
Master Servicer to which the Special Servicer is entitled pursuant to either of
such Sections upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount. The Certificate Account shall
be maintained as a segregated account, separate and apart from trust funds
created for mortgage pass-through certificates of other series and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan (which is not a REO Loan), the
Special Servicer shall promptly, but in no event later than one Business Day
after receipt of available funds, remit such amounts (net of any reimbursable
expenses incurred by the Special Servicer) to or at the direction of the Master
Servicer for deposit into the Certificate Account in accordance with the second
preceding paragraph, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to an REO Property shall be deposited by
the Special Servicer into the REO Account and remitted to the Master Servicer
for deposit into the Certificate Account pursuant to Section 3.16(c). With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer and shall deliver promptly, but in no event later than three Business
Days after receipt, any such check to the Master Servicer by overnight courier,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement or other appropriate reason.
(b) The Paying Agent, on behalf of the Trustee for the benefit of
the Certificateholders, shall establish and maintain one or more trust accounts
(collectively, the "Distribution Account") at the office of the Paying Agent to
be held in trust for the benefit of the Certificateholders. The Companion Paying
Agent shall establish and maintain a trust account for distributions to the
Companion Loans (the "Companion Distribution Account") at the office of the
Paying Agent to be held in trust for the benefit of the Companion Holder. The
Distribution Account and the Companion Distribution Account shall be Eligible
Accounts. The Trustee hereby authorizes the Paying Agent and the Companion
Paying Agent to make deposits in and withdrawals from the Distribution Accounts
and the Companion Distribution Account, respectively, in accordance with the
terms of this Agreement. The Master Servicer shall deliver to the Paying Agent
each month on or before 2:00 PM (New York City time) on the P&I Advance Date
therein, for deposit in the Distribution Account, an aggregate amount of
immediately available funds equal to that portion of the Available Distribution
Amount (calculated without regard to clauses (a)(ii), (a)(v) and (b)(ii)(B) of
the definition thereof) for the related Distribution Date then on deposit in the
Certificate Account, together with (i) any Prepayment Premiums, Yield
Maintenance Charges and/or Additional Interest received on the Mortgage Loans
during the related Collection Period, and (ii) in the case of the final
Distribution Date, any additional amounts contemplated by the second paragraph
of Section 9.01.
The Master Servicer shall deliver to the Companion Paying Agent each
month on or before 2:00 p.m. on the P&I Advance Date therein, for deposit in the
Companion Distribution Account, an aggregate amount of immediately available
funds equal to the amount available to be distributed to the related Companion
Holder pursuant to the related CLF Intercreditor Agreement.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Paying Agent for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) the Purchase Price paid in connection with the purchase by the
Master Servicer of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such amounts
required to be deposited in the Certificate Account pursuant to Section
9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Paying Agent that are required by
the terms of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Interest Reserve
Account shall be an Eligible Account. On or before each Distribution Date in
February and, during each year that is not a leap year, January, the Master
Servicer shall withdraw from the Certificate Account and deposit in the Interest
Reserve Account, with respect to each Interest Reserve Loan, an amount equal to
the Interest Reserve Amount in respect of such Interest Reserve Loan for such
Distribution Date (such withdrawal from the Certificate Account to be made out
of general collections on the Mortgage Pool where any related P&I Advance was
deposited in the Distribution Account).
(d) Prior to any Collection Period during which Additional Interest
is received, and upon notification from the Master Servicer or Special Servicer
pursuant to Section 3.02(f), the Paying Agent, on behalf of the Trustee shall
establish and maintain the Additional Interest Account in the name of the
Trustee in trust for the benefit of the Class Z Certificateholders. The
Additional Interest Account shall be established and maintained as an Eligible
Account. Prior to the applicable Distribution Date, the Master Servicer shall
remit to the Paying Agent for deposit in the Additional Interest Account an
amount equal to the Additional Interest received during the applicable
Collection Period.
Following the distribution of Additional Interest to the Class Z
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Additional Interest, the Paying Agent shall terminate the Additional Interest
Account.
(e) Funds in the Certificate Account and the Interest Reserve
Account may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. Funds on deposit in the Gain-on-Sale Reserve Account
shall be invested pursuant to Section 3.06. The Master Servicer shall give
written notice to the Trustee, the Paying Agent, the Special Servicer and the
Rating Agencies of the location of the Certificate Account as of the Closing
Date and of the new location of the Certificate Account prior to any change
thereof. The Paying Agent shall give written notice to the Trustee, the Master
Servicer, the Special Servicer and the Rating Agencies of any new location of
the Distribution Account prior to any change thereof.
(f) The Paying Agent shall establish (upon notice from Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in the name of the Trustee in trust
for the benefit of the Certificateholders. The Gain-on-Sale Reserve Account
shall be maintained as a segregated account, separate and apart from trust funds
for mortgage pass-through certificates of other series administered by the
Paying Agent and other accounts of the Paying Agent. Upon the disposition of any
REO Property in accordance with Section 3.09 or Section 3.18, the Special
Servicer will calculate the Gain-on-Sale Proceeds, if any, realized in
connection with such sale and remit such funds to the Paying Agent for deposit
into the Gain-on-Sale Reserve Account.
SECTION 3.05 Permitted Withdrawals From the Certificate Account,
Interest Reserve Account, the Additional Interest
Account and the Distribution Account.
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(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) (A) to remit to the Paying Agent for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b) and any amount that may be applied to make
P&I Advances pursuant to Section 4.03(a); and (v) to remit to the
Companion Paying Agent for deposit in each Companion Distribution Account
the amounts required to be so deposited pursuant to the second paragraph
of Section 3.04(b) and any amount relating to a Companion Loan that may be
applied to make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
xxxxxxxxxxxx X&X Advances, the Trustee's and Master Servicer's right to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest (net of the related Servicing Fees) and principal
(net of any related Workout Fee or Principal Recovery Fee) (A) received in
respect of the particular Mortgage Loan or REO Loan as to which such P&I
Advance was made and (B) if the P&I Advance was made in respect to an AB
Mortgage Loan, received in respect of the related Companion Loan;
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage Loan or
REO Loan being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees or Principal Recovery
Fees in respect of each Specially Serviced Mortgage Loan, Corrected
Mortgage Loan and REO Loan, the Special Servicer's (or, if applicable, any
predecessor Special Servicer's) right to payment pursuant to this clause
(v) with respect to any such Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such Specially Serviced Mortgage Loan
or Corrected Mortgage Loan (whether in the form of payments or Liquidation
Proceeds) or such REO Loan (whether in the form of REO Revenues or
Liquidation Proceeds) that are allocable as a recovery of principal or
interest thereon (provided that no Principal Recovery Fee shall be payable
out of (i) Insurance Proceeds and (ii) any Liquidation Proceeds received
in connection with the purchase of any Mortgage Loan or REO Property by a
Mortgage Loan Seller pursuant to the First Union Mortgage Loan Purchase
Agreement, the GACC Mortgage Loan Purchase Agreement or the LaSalle
Mortgage Loan Purchase Agreement, by the Majority Subordinate
Certificateholder, the Companion Holder, the Abbey Mezzanine Lender, or
the Special Servicer as described in Section 3.18(d), Section 3.18(m) or
Section 3.26(d) or by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01);
provided, however, with respect to Section 3.18(m) that if the Abbey
Mezzanine Lender does not exercise its right to purchase the applicable
Mortgage Loan within the 15 day time period pursuant to the Abbey
Intercreditor Agreement, with respect to any purchase of the applicable
Mortgage Loan, the Abbey Mezzanine Lender will be required to pay an
amount equal to 1% of the purchase price of the applicable Mortgage Loan
to the Special Servicer as a Principal Recovery Fee (and such Principal
Recovery Fee will not be an expense of the Trust);
(vi) to reimburse the Trustee or itself, in that order, for any
unreimbursed Servicing Advances, the Trustee's and the Master Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to payments made by the
related Mortgagor that are allocable to such Servicing Advance, or to
Liquidation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan, Companion Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse the Trustee or itself, in that order, for any
unreimbursed Advances that have been or are determined to be
Nonrecoverable Advances or to pay itself, with respect to any Mortgage
Loan or any REO Property, any related earned Master Servicing Fee that
remained unpaid in accordance with clause (iii) above following a Final
Recovery Determination made with respect to such Mortgage Loan or REO
Property and the deposit into the Certificate Account of all amounts
received in connection therewith;
(viii) at such time as it reimburses the Trustee or itself, in that
order, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above, to pay the Trustee or itself, as the case may be, in that order,
any interest accrued and payable thereon in accordance with Section
3.03(d) or 4.03(d), as applicable; the Master Servicer's rights to payment
pursuant to this clause (viii) with respect to interest on any Advance
being permitted to be satisfied (A) subject to the terms of the CLF
Intercreditor Agreement with respect to the related Loan Pair, out of late
payment charges and Penalty Interest collected on or in respect of the
related Mortgage Loan (and if the Advance was made with respect to an AB
Mortgage Loan; out of such amounts collected on or in respect of the
related Companion Loan) and REO Loan (the use of such late payment charges
and Penalty Interest to be allocated between the Master Servicer and the
Special Servicer on a pro rata basis based on the amount of late payment
charges and Penalty Interest that the Master Servicer and the Special
Servicer have received as additional servicing compensation during such
period), and (B) to the extent that the late payment charges and Penalty
Interest described in the immediately preceding clause (A) are
insufficient, but only at the same time or after such Advance has been
reimbursed, out of general collections on the Mortgage Loans, Companion
Loans and any REO Properties on deposit in the Certificate Account;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.12(a);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Certificate Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Certificate Account for any Collection Period; (B) any
Prepayment Interest Excesses, and (C) Penalty Interest and late payment
charges on Mortgage Loans which are not Specially Serviced Mortgage Loans
(to the extent such Penalty Interest and/or late payment charges were not
applied to offset interest on Advances pursuant to clause (viii)(A) or
Additional Trust Fund Expenses pursuant to Section 3.03(d) or 4.03(d) or
inspection expenses pursuant to Section 3.12(a));
(xi) to pay to the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(d), Penalty Interest and late
payment charges on Specially Serviced Mortgage Loans (to the extent such
Penalty Interest and/or late payment charges were not applied to offset
Additional Trust Fund Expenses pursuant to Section 3.03(d) or 4.03(d) or
inspection expenses pursuant to Section 3.12(a));
(xii) to pay for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18 or 4.03(c);
(xiii) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03;
(xiv) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions of
Counsel contemplated by Sections 3.09(b)(ii), 3.20(d) and 11.02(a), (C)
the cost of an Opinion of Counsel contemplated by Section 11.01(a) or
11.01(c) in connection with any amendment to this Agreement requested by
the Master Servicer or the Special Servicer that protects or is in
furtherance of the rights and interests of Certificateholders, and (D) the
cost of recording this Agreement in accordance with Section 11.02(a);
(xv) to pay itself, the Special Servicer, any of the Mortgage Loan
Sellers, the Majority Subordinate Certificateholder, a Companion Holder,
or any other Person, as the case may be, with respect to each Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xvi) to withdraw any Interest Reserve Amount and deposit such
Interest Reserve Amount into the Interest Reserve Account pursuant to
Section 3.04(c);
(xvii) to remit to the Paying Agent for deposit into the Additional
Interest Account the amounts required to be deposited pursuant to Section
3.04(d);
(xviii) to remit to the Paying Agent for deposit into the
Distribution Account the amounts required to be deposited pursuant to
Section 3.04(b);
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b);
(xx) to pay the cost of any Environmental Assessment or any
remedial, corrective or other action pursuant to Section 3.09(c);
(xxi) to withdraw any amounts deposited in error;
(xxii) to withdraw any other amounts that this Agreement expressly
provides may be withdrawn from the Certificate Account; and
(xxiii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Certificate Account pursuant to clauses (ii)-(xix) above.
The Master Servicer shall, to the extent permitted by the terms of the related
CLF Intercreditor Agreement, make claims for reimbursement from the related
Companion Holder in connection with related Servicing Advances and interest
thereon and other related expenses so as to minimize the total amount of
withdrawals on the Certificate Account for such items. Notwithstanding anything
in this Section 3.05(a) to the contrary, in no event shall the Master Servicer
withdraw from funds on deposit in the Certificate Account any amount to be
applied to, or to provide reimbursement for, any amounts referenced in this
Section 3.05(a) (other than amounts referenced in clause (xviii)) which relate
to any Companion Loan to the extent the related AB Mortgage Loan has been paid
in full in a prior Collection Period.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer), the Trustee or the
Paying Agent from the Certificate Account amounts permitted to be paid to the
Special Servicer (or to such third party contractors), the Trustee or the Paying
Agent therefrom promptly upon receipt of a certificate of a Servicing Officer of
the Special Servicer or of a Responsible Officer of the Trustee describing the
item and amount to which the Special Servicer (or such third party contractors),
the Trustee or the Paying Agent is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account. With respect to each
Mortgage Loan or Companion Loan for which it makes an Advance, the Trustee shall
similarly keep and maintain separate accounting for each Mortgage Loan, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account for reimbursements of
Advances or interest thereon.
(b) The Paying Agent may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make deemed distributions to itself as holder of the REMIC I
Regular Interests and to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee and the Paying Agent or any of their
respective directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person pursuant to Section
8.05 to the extent not paid pursuant to Section 4.01(i);
(iii) to pay the Trustee and the Paying Agent their respective
portions of the Trustee Fee as contemplated by Section 8.05(a) hereof with
respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization", (B) as contemplated by Section
3.20(d), 9.02(a) and 10.01(h), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 4.01(i);
(v) to pay any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Trustee, the Paying Agent, the REMIC Administrator, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(i);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account as contemplated by Section
4.01(i).
(d) The Master Servicer shall on each P&I Advance Date to occur in
March of each year, withdraw from the Interest Reserve Account and deposit into
the Distribution Account in respect of each Interest Reserve Loan, an amount
equal to the aggregate of the Interest Reserve Amounts deposited into the
Interest Reserve Account pursuant to Section 3.04(c) during the immediately
preceding Collection Period and, if applicable, the second preceding Collection
Period.
(e) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Additional Interest Account to the extent required to make
the distributions of Additional Interest required by Section 4.01(b).
SECTION 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Interest Reserve Account, the Distribution Account,
the Companion Distribution Account, the Additional
Interest Account and the REO Account.
---------------------------------------------------
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Interest
Reserve Account or the Certificate Account (each, for purposes of this Section
3.06, an "Investment Account"), the Special Servicer may direct in writing any
depository institution maintaining the REO Account (also, for purposes of this
Section 3.06, an "Investment Account") and the Paying Agent may direct in
writing any depository institution maintaining the Gain-on-Sale Reserve Account
(also, for purposes of this Section 3.06, an "Investment Account"), to invest,
or if it is such depository institution, may itself invest, the funds held
therein only in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement. Funds held in the
Distribution Account, the Additional Interest Account and the Companion
Distribution Account shall remain uninvested. In the event that the Master
Servicer shall have failed to give investment directions for any Servicing
Account, any Reserve Account, the Certificate Account, the Interest Reserve
Account (exclusive of any accounts as are held by the Master Servicer) or the
Special Servicer shall have failed to give investment directions for the REO
Account by 11:00 A.M. New York time on any Business Day on which there may be
uninvested cash, such funds held in the REO Account shall be invested in
securities described in clause (i) of the definition of the term "Permitted
Investments"; and such funds held in such other accounts shall be invested in
securities described in clause (v) of such definition. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the Reserve Accounts, the
Certificate Account or the Interest Reserve Account) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Account), on behalf
of the Trustee, shall (and the Trustee hereby designates the Master Servicer and
the Special Servicer, as applicable, as the person that shall) maintain
continuous possession of any Permitted Investment that is either (i) a
"certificated security", as such term is defined in the UCC, or (ii) other
property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by the Master Servicer or the Special Servicer shall
constitute possession by the Trustee, as secured party, for purposes of Section
9-313 of the UCC and any other applicable law. If amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Master Servicer (in the case of the Certificate Account, Servicing
Accounts, the Interest Reserve Account and Reserve Accounts), or the Special
Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Certificate
Account, or the Interest Reserve Account, interest and investment income
realized on funds deposited therein, to the extent of the related Net Investment
Earnings, if any, for each Collection Period and, in the case of a Reserve
Account or a Servicing Account, to the extent not otherwise payable to the
related Mortgagor in accordance with applicable law or the related Mortgage Loan
documents, shall be for the sole and exclusive benefit of the Master Servicer
and shall be subject to its withdrawal in accordance with Section 3.03(a),
3.03(f) or 3.05(a), as applicable. Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of the Servicing Accounts, the Reserve Accounts, the
Interest Reserve Account and the Certificate Account, excluding any accounts
containing amounts invested solely for the benefit of, and at the direction of,
the Mortgagor under the terms of the Mortgage Loan or applicable law) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period, provided, that neither the
Master Servicer nor the Special Servicer shall be required to deposit any loss
on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Special Servicer or the Master Servicer fails to deposit any
losses with respect to such Permitted Investment pursuant to Section 3.06(b),
the Trustee may and, subject to Section 8.02, upon the request of Holders of
Certificates entitled to not less than 25% of the Voting Rights allocated to any
Class, shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
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(a) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall, consistent with the Servicing
Standard, use reasonable efforts to cause the related borrowers to maintain for
each Mortgaged Property all insurance coverage as is required under the related
Mortgage and if the related borrower fails to maintain such insurance, the
Master Servicer or the Special Servicer, as applicable, shall cause such
insurance to be maintained; provided that if and to the extent that any such
Mortgage permits the holder thereof any discretion (by way of consent, approval
or otherwise) as to the insurance coverage that the related Mortgagor is
required to maintain, the Master Servicer or Special Servicer, as applicable,
shall exercise such discretion in a manner consistent with the Servicing
Standard; and provided further that, if and to the extent that a Mortgage so
permits, the related Mortgagor shall be required to exercise its reasonable best
efforts to obtain the required insurance coverage from Qualified Insurers and
required insurance coverage obtained by the Master Servicer shall be from
Qualified Insurers. The cost of any such insurance coverage obtained by either
the Master Servicer or the Special Servicer shall be a Servicing Advance to be
paid by the Master Servicer pursuant to Section 3.03. Even if the Mortgage Loan
Documents do not require such coverage, the Majority Subordinate
Certificateholder may request that earthquake insurance be secured for one or
more Mortgaged Properties at the expense of the Majority Subordinate
Certificateholder. Subject to Section 3.17(a) and the last paragraph of this
Section 3.07(a), the Special Servicer shall also cause to be maintained, for
each REO Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage; provided that all such insurance shall be
obtained from Qualified Insurers. All such insurance policies maintained by the
Master Servicer or the Special Servicer (i) shall contain (if they insure
against loss to property and do not relate to an REO Property) a "standard"
mortgagee clause, with loss payable to the Trustee or the Master Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case
of insurance maintained in respect of REO Properties), on behalf of the Trustee;
(iii) shall be non-cancelable without 30 days' prior written notice to the
insured party; (iv) include coverage in an amount not less than the lesser of
(x) the full replacement cost of the improvements securing a Mortgaged Property
or REO Property, as applicable, or (y) the outstanding principal balance owing
on the related Mortgage Loan or REO Loan, as applicable, and in any event, the
amount necessary to avoid the operation of any co-insurance provisions; (v)
include a replacement cost endorsement providing no deduction for depreciation
(unless such endorsement is not permitted under the related Mortgage Loan
documents); and (vi) in each case such insurance shall be issued by an insurer
authorized under applicable law to issue such insurance. Any amounts collected
by the Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case subject to the rights of any tenants and ground lessors, as the case
may be, and in each case in accordance with the terms of the related Mortgage
and the Servicing Standard) shall be deposited in the Certificate Account,
subject to withdrawal pursuant to Section 3.05(a), in the case of amounts
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit.
Notwithstanding the foregoing, the Master Servicer or Special
Servicer, as applicable, will not be required to maintain (and in the case of
the Special Servicer, with respect to any REO Loan and any Specially Serviced
Mortgage Loan), and shall not cause a borrower to be in default with respect to
the failure of the related borrower to obtain, all-risk casualty insurance which
does not contain any carve-out for terrorist or similar act, if and only if the
Master Servicer or Special Servicer, as applicable, has determined, in
consultation with the Controlling Class Representative, in accordance with the
Servicing Standard that either (a) such insurance is not available at any rate
or (b) such insurance is not available at commercially reasonably rates and that
such hazards are not at the time commonly insured against for properties similar
to the Mortgaged Property and located in or around the region in which such
Mortgaged Property is located; provided, however, the Controlling Class
Representative shall not have more than three Business Days to respond to the
Master Servicer's or Special Servicer's request for consultation; provided,
further, that upon the Master Servicer's or Special Servicer's determination
consistent with the Servicing Standard, that exigent circumstances do not allow
the Master Servicer or Special Servicer, as the case may be, to consult with the
Controlling Class Representative, the Master Servicer or Special Servicer shall
not be required to do so.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as the case may be, shall conclusively be deemed to have satisfied its
obligation to cause hazard insurance to be maintained on the related Mortgaged
Properties and/or REO Properties. Such blanket policy may contain a deductible
clause (not in excess of a customary amount), in which case the Master Servicer
or the Special Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses that would have been covered by such policy, promptly
deposit into the Certificate Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause the qualification, downgrading or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
for ten days' written notice to the Trustee prior to any cancellation.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified FNMA, or FHLMC, seller-servicer of multifamily mortgage loans, or in
such other form and amount as would not cause the qualification, downgrade or
withdrawal of any rating assigned by any Rating Agency to the Certificates (as
evidenced in writing from each Rating Agency). Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provisions if an Affiliate thereof has such insurance and, by the terms of such
policy or policies, the coverage afforded thereunder extends to the Master
Servicer or the Special Servicer, as the case may be. Any such errors and
omissions policy shall provide for ten days' written notice to the Trustee prior
to cancellation. The Master Servicer and the Special Servicer shall each cause
the Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A" or the equivalent by all of the Rating Agencies (or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this subsection.
SECTION 3.08 Enforcement of Alienation Clauses.
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(a) Upon receipt of any request of a waiver in respect of a
due-on-sale or due-on-encumbrance provision, the Master Servicer shall promptly
forward such request to the Special Servicer along with a written recommendation
and rationale therefor, with respect to matters for which the Master Servicer
receives additional servicing compensation pursuant to Section 3.11(b)(ii),
regarding such request. With respect to all Mortgage Loans, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the
extent permitted by applicable law, enforce the restrictions contained in the
related Mortgage on transfers or further encumbrances of the related Mortgaged
Property and on transfers of interests in the related Mortgagor, unless the
Special Servicer (after providing the Controlling Class Representative 12
Business Days notice of such proposed action pursuant to Section 6.11, which
notice shall be given by the Special Servicer no later than three Business Days
after receipt of such request) has determined, consistent with the Servicing
Standard, that waiver of such restrictions would be in accordance with the
Servicing Standard. Promptly after the Special Servicer (after providing the
Controlling Class Representative 12 Business Days notice of such proposed action
pursuant to Section 6.11, which notice shall be given by the Special Servicer no
later than three Business Days after receipt of such request) has made any such
determination, the Special Servicer shall deliver to the Trustee, the Master
Servicer, the Rating Agencies and each other party hereto an Officers'
Certificate setting forth the basis for such determination. The Special Servicer
shall not exercise any such waiver in respect of a due-on-encumbrance provision
of any Mortgage Loan (i) without receiving prior written confirmation from
Xxxxx'x that such action would not result in a downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates or (ii) for which
(a) the Stated Principal Balance of such Mortgage Loan is equal to or in excess
of $20,000,000, (b) the aggregate of the Stated Principal Balance of such
Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that
are cross-collateralized, cross-defaulted or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, are greater than 2% of the
aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage Loan
is one of the ten largest Mortgage Loans as of the date of the waiver (by Stated
Principal Balance), or (d) has a Loan-to-Value Ratio (calculated to include the
additional indebtedness secured by any encumbrance) that is equal to or greater
than 85% and a Debt Service Coverage Ratio (calculated to include the additional
debt from any encumbrance) of 1.2x or less, without receiving a prior written
confirmation secured by S&P that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates.
With respect to a waiver of a due-on-sale provision, the Special Servicer shall
not waive any such restriction without receiving prior written confirmation from
S&P and Xxxxx'x that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates;
provided, that if the Mortgage Loan does not meet the criteria set forth in
clauses (ii)(a), (ii)(b) or (ii)(c) of the prior sentence, the Special Servicer
may waive such requirement without approval by S&P in accordance with the
Servicing Standard; and provided, further, that if the Mortgage Loan does not
meet the criteria set forth in clauses (ii)(a), or (ii)(b) of the prior
sentence, the Special Servicer may waive such requirement without approval by
Xxxxx'x in accordance with the Servicing Standard.
(b) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer (without the Special Servicer's consent) or the Special
Servicer, as applicable, may grant, without any Rating Agency confirmation as
provided in paragraph (a) above, a Mortgagor's request for consent to subject
the related Mortgaged Property to an easement or right-of-way for utilities,
access, parking, public improvements or another purpose, and may consent to
subordination of the related Mortgage Loan to such easement or right-of-way
provided the Master Servicer or the Special Servicer, as applicable, shall have
determined in accordance with the Servicing Standard that such easement or
right-of-way shall not materially interfere with the then-current use of the
related Mortgaged Property, or the security intended to be provided by such
Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or
materially or adversely affect the value of such Mortgaged Property or cause the
Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
(c) Within ninety (90) days after receipt of an environmental
insurance policy, with respect to each of the Mortgage Loans covered by an
environmental insurance policy, the Master Servicer shall notify the insurer
under such environmental insurance policy and take all other action necessary
for the Trustee, on behalf of the Certificateholders, to be an insured (and for
the Master Servicer, on behalf of the Trust Fund, to make claims) under such
environmental insurance policy. In the event that the Master Servicer (or the
Special Servicer with respect to Specially Serviced Mortgage Loans) has actual
knowledge of any event (an "Insured Environmental Event") giving rise to a claim
under any environmental insurance policy in respect of any Mortgage Loan covered
thereby, the Master Servicer (or the Special Servicer with respect to Specially
Serviced Mortgage Loans) shall, in accordance with the terms of such
environmental insurance policy and the Servicing Standard, timely make a claim
thereunder with the appropriate insurer and shall take such other actions in
accordance with the Servicing Standard which are necessary under such
environmental insurance policy in order to realize the full value thereof for
the benefit of the Certificateholders. Any legal fees, premiums or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any such claim under an environmental insurance policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance or an Additional Trust Fund Expense. With respect to each environmental
insurance policy that relates to one or more Mortgage Loans, the Master Servicer
(or the Special Servicer with respect to Specially Serviced Mortgage Loans)
shall review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy to realize the full value
thereof for the benefit of the Certificateholders in the event the Master
Servicer (or the Special Servicer with respect to Specially Serviced Mortgage
Loans) has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer (or the Special Servicer with
respect to Specially Serviced Mortgage Loans) receives notice of any termination
of any environmental insurance policy that relates to one or more Mortgage
Loans, the Master Servicer (or the Special Servicer with respect to Specially
Serviced Mortgage Loans) shall, within five Business Days (or two Business Days
with respect to any Specially Serviced Mortgage Loan) after receipt of such
notice, notify each other, the Controlling Class Representative, the Rating
Agencies and the Trustee of such termination in writing. Upon receipt of such
notice, the Master Servicer with respect to non-Specially Serviced Mortgage
Loans, and the Special Servicer with respect to Specially Serviced Mortgage
Loans, shall address such termination in accordance with Section 3.07(a) in the
same manner as it would the termination of any other Insurance Policy required
under the related Mortgage Loan documents. Any legal fees, premiums or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with a resolution of such termination of an environmental insurance
policy shall be paid by the Master Servicer and shall be reimbursable to it as a
Servicing Advance.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
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(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d) and Section 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall, at the request of the Special Servicer, advance all costs and
expenses (other than costs or expenses that would, if incurred, constitute a
Non-recoverable Servicing Advance) incurred by the Special Servicer in any such
proceedings, and shall be entitled to reimbursement therefor as provided in
Section 3.05(a). Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall not be obligated to provide to the Special Servicer a
written recommendation and rationale with respect to any waiver, consents, or
approvals if any action by the Master Servicer is not required for any such
waiver, consent or approval except with respect to assumptions of non-Specially
Serviced Mortgage Loans; provided, that the Master Servicer shall not be
entitled to any fees if it is not required to act pursuant to the terms hereof.
Nothing contained in this Section 3.09 shall be construed so as to require the
Special Servicer, on behalf of the Trust Fund, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Special Servicer in
accordance with the Servicing Standard and in its reasonable and good faith
judgment taking into account, as applicable, among other factors, the period and
amount of any delinquency on the affected Mortgage Loan, the occupancy level and
physical condition of the Mortgaged Property or REO Property, the state of the
local economy, the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a) and the results of any appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the Master Servicer or the
Special Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a Defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, it may, at the
expense of the Trust Fund, have an appraisal performed with respect to such
property by an Independent Appraiser or other expert in real estate matters;
which appraisal shall take into account, as applicable, among other factors, the
period and amount of any delinquency on the affected Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would
consider.
With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to obtain a Required Appraisal (or with respect to any
Mortgage Loan with an outstanding principal balance less than $2,000,000, an
internal valuation performed by the Special Servicer) within 60 days of a
Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an appraisal
meeting the requirements of a Required Appraisal was obtained for such Required
Appraisal Mortgage Loan within the prior 12 months and the Special Servicer has
no actual knowledge of a material adverse change in the condition or fair market
value of the related Mortgaged Property in which case such appraisal may be a
letter update of the Required Appraisal) and thereafter shall obtain a Required
Appraisal (or with respect to any Mortgage Loan with an outstanding principal
balance less than $2,000,000, an internal valuation performed by the Special
Servicer) once every 12 months (or sooner if the Special Servicer has actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property) if such Mortgage Loan remains a Required Appraisal Mortgage Loan. The
Special Servicer will deliver a copy of each Required Appraisal (or letter
update or internal valuation) to the Master Servicer, the Controlling Class
Representative, the Paying Agent and the Trustee within 10 Business Days of
obtaining such Required Appraisal (or letter update or internal valuation).
Subject to the second paragraph of Section 3.03(c), the Master Servicer shall
advance the cost of such Required Appraisal; provided, however, that such
expense will be subject to reimbursement to the Master Servicer as a Servicing
Advance out of the Certificate Account pursuant to Section 3.05(a)(vi) and
3.05(a)(vii).
Notwithstanding the foregoing, in no event shall the Master Servicer
or the Special Servicer obtain an appraisal of a Companion Loan pursuant to this
Section 3.09(a) to the extent the related AB Mortgage Loan has been paid in
full.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which may be withdrawn from the Certificate Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property as part of the Trust Fund (to the extent not allocable to a
Companion Loan) will not cause the imposition of a tax on either REMIC I
or REMIC II under the REMIC Provisions or cause either REMIC I or REMIC II
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
by deed in lieu of foreclosure or otherwise, or take any other action with
respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders, could, in the reasonable judgment
of the Master Servicer or the Special Servicer, as the case may be, made in
accordance with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless (as evidenced by an Officers'
Certificate to such effect delivered to the Trustee that shall specify all of
the bases for such determination) the Special Servicer has previously determined
in accordance with the Servicing Standard, and based on an Environmental
Assessment of such Mortgaged Property performed by an Independent Person who
regularly conducts Environmental Assessments and performed within six months
prior to any such acquisition of title or other action (a copy of which
Environmental Assessment shall be delivered to the Trustee, the Paying Agent,
the Controlling Class Representative and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
to be performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph shall be at the expense
of the Trust Fund (except with respect to any Companion Loan and any
Environmental Assessment ordered after the related AB Mortgage Loan has been
paid in full); and if any such Environmental Assessment so warrants, the Special
Servicer shall perform such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied, the cost of which
shall be at the expense of the Trust Fund.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
thereof has not been satisfied with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan and there is no breach of a representation or warranty
requiring repurchase under the First Union Mortgage Loan Purchase Agreement, the
GACC Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan Purchase
Agreement, as applicable, the Special Servicer shall take such action as is in
accordance with the Servicing Standard (other than proceeding to acquire title
to the Mortgaged Property) and, at such time as it deems appropriate, may, on
behalf of the Trustee, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage; provided that, if such Mortgage Loan has a
then outstanding principal balance of greater than $1 million, then prior to the
release of all or a portion of the related Mortgaged Property from the lien of
the related Mortgage, (i) the Special Servicer shall have notified the Rating
Agencies, the Trustee, the Paying Agent, the Controlling Class Representative
and the Master Servicer in writing of its intention to so release all or a
portion of such Mortgaged Property and the bases for such intention, (ii) the
Paying Agent shall have notified the Certificateholders in writing of the
Special Servicer's intention to so release all or a portion of such Mortgaged
Property and (iii) the Holders of Certificates entitled to a majority of the
Voting Rights shall have consented to such release within 30 days of the Paying
Agent's distributing such notice (failure to respond by the end of such 30-day
period being deemed consent).
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative, the Paying Agent and the Trustee monthly in
writing as to any actions taken by the Special Servicer with respect to any
Mortgaged Property that represents security for a Defaulted Mortgage Loan as to
which the environmental testing contemplated in Section 3.09(c) above has
revealed that any of the conditions set forth in clauses (i) and (ii) thereof
has not been satisfied, in each case until the earlier to occur of satisfaction
of all such conditions and release of the lien of the related Mortgage on such
Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to
reports of foreclosures and abandonments of any Mortgaged Property and the
information returns relating to any Mortgaged Property required by Sections
6050J and 6050P of the Code and each year deliver to the Trustee and the Paying
Agent an Officers' Certificate stating that such reports have been filed. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate (together with the
basis and back-up documentation for the determination) delivered to the Trustee,
the Paying Agent, the Controlling Class Representative and the Master Servicer
no later than the third Business Day following such Final Recovery
Determination.
SECTION 3.10 Trustee and Custodian to Cooperate;
Release of Mortgage Files.
-----------------------------------
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee in writing, who shall release or cause the related Custodian to
release, by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee or related Custodian to the
Master Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11 Servicing Compensation.
----------------------
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Master Servicing Fee
with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly, on a loan-by-loan basis, from payments of
interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Mortgage Loan or REO Loan out of that portion
of related Insurance Proceeds or Liquidation Proceeds allocable as recoveries of
interest, to the extent permitted by Section 3.05(a)(iii). The right to receive
the Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
(b) Additional servicing compensation in the form of: (i) all late
payment charges, Penalty Interest, modification fees for Mortgage Loan
modifications made by the Master Servicer pursuant to Section 3.20(i), charges
for beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees (excluding Prepayment Premiums or Yield
Maintenance Charges), in each case to the extent actually paid by a Mortgagor
with respect to a Mortgage Loan and accrued during the time that such Mortgage
Loan was not a Specially Serviced Mortgage Loan, and (ii) one hundred percent
(100%) of any assumption application fee and fifty percent (50%) of any
assumption fee (or 0% if the Master Servicer fails to provide a written
recommendation and rationale therefor to the Special Servicer) to the extent
actually paid by a Mortgagor with respect to any Mortgage Loan, in either case,
that is not a Specially Serviced Mortgage Loan, may be retained by the Master
Servicer and are not required to be deposited in the Certificate Account;
provided that the Master Servicer's right to receive late payment charges and
Penalty Interest pursuant to clause (i) above shall be limited to the portion of
such items that have not been applied to pay interest on Advances or Additional
Trust Fund Expenses as provided in Sections 3.03(d) and 4.03(d). Penalty
Interest or late payment charges in respect of any Mortgage Loan which has
accrued during the period when the related Mortgage Loan is not a Specially
Serviced Mortgage Loan shall be additional compensation to the Master Servicer
even if collected during the period when the related Mortgage Loan is a
Specially Serviced Mortgaged Loan. The Master Servicer shall also be entitled to
additional servicing compensation in the form of (i) Prepayment Interest
Excesses; (ii) interest or other income earned on deposits in the Certificate
Account and the Interest Reserve Account, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
each such account for each Collection Period), (iii) one hundred percent (100%)
of all defeasance fees for all Mortgage Loans and (iv) to the extent not
required to be paid to any Mortgagor under applicable law or the terms of the
related Mortgage Loan, any interest or other income earned on deposits in the
Reserve Accounts and Servicing Accounts maintained thereby. The Master Servicer
shall be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers and
the premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account, and the Master Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement. The
Master Servicer shall not waive or agree to any discount of any portion of
assumption fees to which the Special Servicer is entitled.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue at
the Special Servicing Fee Rate and on the same principal amount respecting which
the related interest payment due on such Specially Serviced Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Special Servicing Fee
with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees
shall be payable monthly out of general collections on the Mortgage Loans and
any REO Properties on deposit in the Certificate Account pursuant to Section
3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan (net of any portion of such collection payable or reimbursable to the
Master Servicer, the Special Servicer, the Paying Agent or the Trustee for any
related unpaid or unreimbursed Master Servicing Fees and/or Advances) received
on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable
if a Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee
would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan. If the Special Servicer is terminated or resigns, it will retain
the right to receive any and all Workout Fees payable with respect to any
Specially Serviced Mortgage Loan that became a Corrected Mortgage Loan during
the period that it acted as Special Servicer and remained a Corrected Mortgage
Loan at the time of its termination or resignation or if the Special Servicer
resolved the circumstances and/or conditions (including by way of a modification
of the related Mortgage Loan documents) causing the Mortgage Loan to be a
Specially Serviced Loan, but the Mortgage Loan had not as of the time the
Special Servicer is terminated or resigns become a Corrected Mortgage Loan
because the related borrower had not made three consecutive monthly debt service
payments (but had made the most recent monthly debt service payment prior to the
termination of the Special Servicer) and subsequently becomes a Corrected
Mortgage Loan as a result of making such three consecutive payments. The
successor Special Servicer will not be entitled to any portion of those Workout
Fees.
In addition, with respect to each Specially Serviced Mortgage Loan
and REO Loan (or Qualified Substitute Mortgage Loan substituted in lieu
thereof), the Special Servicer shall be entitled to the Principal Recovery Fee
payable out of, and calculated by application of the Principal Recovery Fee Rate
to, all amounts (whether in the form of payments of Liquidation Proceeds or REO
Revenues) received in respect of such Mortgage Loan (or, in the case of an REO
Loan, in respect of the related REO Property) and allocable as a recovery of
principal, interest and expenses in accordance with Section 3.02(b) or the
definition of "REO Loan", as applicable; provided that no Principal Recovery Fee
shall be payable in connection with, or out of (i) Insurance Proceeds and (ii)
Liquidation Proceeds resulting from the purchase of any Mortgage Loan or REO
Property by a Mortgage Loan Seller pursuant to the First Union Mortgage Loan
Purchase Agreement, the GACC Mortgage Loan Purchase Agreement or the LaSalle
Mortgage Loan Purchase Agreement, by the Majority Subordinate Certificateholder,
the Companion Holder or the Special Servicer pursuant to Section 3.18(d) or
Section 3.26(d) or by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder pursuant to Section 9.01; and provided further
that no Principal Recovery Fee shall be payable (i) in connection with a
Periodic Payment received in connection with such Mortgage Loan or (ii) to the
extent a Workout Fee is payable concerning the Liquidation Proceeds; provided
further that if any such Liquidation Proceeds are received with respect to any
Corrected Mortgaged Loan, and the Special Servicer is properly entitled to a
Workout Fee therefrom, such Workout Fee will be payable based on and from the
portion of such Liquidation Proceeds that constitute principal and/or interest;
and provided, further that, with respect to Liquidation Proceeds collected in
connection with item (i) of the definition thereof, the Special Servicer, prior
to such condemnation or taking by power of eminent domain, shall have prepared
the sale, transfer or liquidation of such Mortgaged Property or such
condemnation is of a material portion of the Mortgaged Property, and the Special
Servicer shall have been primarily responsible for protecting the Trust Fund's
interests in such proceedings bringing about the condemnation or taking by power
of eminent domain.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of: (i) all late
payment charges, Penalty Interest and assumption application fees received on or
with respect to Specially Serviced Mortgage Loans actually collected that
accrued during the time that the related Mortgage Loan was a Specially Serviced
Mortgage Loan, (ii) one-hundred percent (100%) of any assumption fee to the
extent actually paid by a Mortgagor with respect to any Specially Serviced
Mortgage Loan and fifty percent (50%) of any assumption fee to the extent
actually paid by a Mortgagor with respect to any Mortgage Loan, in either case,
that is not a Specially Serviced Mortgage Loan, and (iii) modification fees
collected on all Mortgage Loans (other than modifications made by the Master
Servicer pursuant to Section 3.20(i)), in each case to the extent actually paid
by the related Mortgagor, shall be retained by the Special Servicer or promptly
paid to the Special Servicer by the Master Servicer and shall not be required to
be deposited in the Certificate Account provided that the Special Servicer's
right to receive late payment charges and Penalty Interest pursuant to clause
(i) above shall be limited to the portion of such items that have not been
applied to pay interest on Advances or Additional Trust Fund Expenses and
property inspection costs in respect of the related Mortgage Loan as provided in
Sections 3.03(d), 3.12(a) and 4.03(d). The Special Servicer shall also be
entitled to additional servicing compensation in the form of: (i) interest or
other income earned on deposits in the REO Account, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to the REO Account for each Collection Period);
and (ii) to the extent not required to be paid to any Mortgagor under applicable
law, any interest or other income earned on deposits in the Servicing Accounts
maintained by the Special Servicer. The Special Servicer shall be required to
pay out of its own funds all general and administrative expenses incurred by it
in connection with its servicing activities hereunder, and the Special Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
Section 3.05(a) if and to the extent such expenses are not payable directly out
of the Certificate Account or the REO Account. The Special Servicer shall not
waive or agree to any discount of any portion of assumption fees to which the
Master Servicer is entitled.
SECTION 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
---------------------------------------------
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan (i) becomes a Specially Serviced Mortgage Loan, provided
that such expense shall be reimbursable first out of Penalty Interest and late
payment charges on the related Mortgage Loan and received since the Closing
Date, then as an Additional Trust Fund Expense (except with respect to any
Companion Loan and any inspection occurring after the related AB Mortgage Loan
has been paid in full). Each of the Master Servicer for each Mortgage Loan other
than a Specially Serviced Mortgage Loan or REO Loan and the Special Servicer for
each Specially Serviced Mortgage Loan and REO Loan shall at its expense perform
or cause to be performed an inspection of all the Mortgaged Properties at least
once per calendar year (or, in the case of each Mortgaged Property securing a
Mortgage Loan (other than a Specially Serviced Mortgage Loan) with a then
current principal balance (or allocated loan amount) of less than $2,000,000 at
the time of such inspection, every other calendar year) beginning in 2002,
unless such Mortgaged Property has been inspected within the previous 6 months.
The Special Servicer and the Master Servicer shall each prepare (and, in the
case of the Special Servicer, shall deliver to the Master Servicer) a written
report of each such inspection performed by it that sets forth in detail the
condition of the Mortgaged Property and that specifies the existence of: (i) any
sale, transfer or abandonment of the Mortgaged Property of which it is aware,
(ii) any change in the condition or value of the Mortgaged Property that it, in
its reasonable judgment, considers material, or (iii) any visible waste
committed on the Mortgaged Property. The Master Servicer shall deliver such
reports to the Trustee and the Paying Agent within 45 days of the related
inspection and the Paying Agent shall, subject to Section 3.15, make copies of
all such inspection reports available for review by Certificateholders and
Certificate Owners during normal business hours at the offices of the Paying
Agent at all times after Paying Agent's receipt thereof. Upon written request
and at the expense of the requesting party, the Paying Agent shall deliver
copies of any such inspection reports to Certificateholders and Certificate
Owners. The Special Servicer shall have the right to inspect or cause to be
inspected (at its own expense) every calendar year any Mortgaged Property
related to a loan that is not a Specially Serviced Mortgage Loan, provided that
the Special Servicer obtains the approval of the Master Servicer prior to such
inspection, and provides a copy of such inspection to the Master Servicer; and
provided, further that the Master Servicer and the Special Servicer shall not
both inspect a Mortgaged Property that is not securing a Specially Serviced
Mortgage Loan in the same calendar year. If the Special Servicer performs such
inspection, such inspection shall satisfy the Master Servicer's inspection
obligations pursuant to this paragraph (a).
With respect to site inspection information, the Master Servicer
shall make such inquiry of any Mortgagor under any related Mortgage Loan as the
Special Servicer may reasonably request.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties
providing the required information as of the end of the preceding calendar
month: (i) a CMSA Property File; (ii) a Comparative Financial Status Report and
(iii) CMSA Financial File. Not later than 5:00 p.m. (New York City time) on the
first Business Day following each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Mortgage Loans (and, if applicable, the related REO
Properties) (or, as to clause (iv) below, only with respect to Specially
Serviced Mortgage Loans) providing the required information as of such
Determination Date: (i) a Historical Liquidation Report; (ii) a Historical Loan
Modification Report; (iii) an REO Status Report, and (iv) a Delinquent Loan
Status Report. Not later than 4:00 p.m. (New York City time) on the second
Business Day of each calendar month, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer (in electronic format acceptable to the
Master Servicer and the Special Servicer) an Interim Delinquent Loan Status
Report.
(c) Not later than 3:00 p.m. (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver or
cause to be delivered to the Paying Agent (in electronic format acceptable to
the Master Servicer and the Paying Agent) (A) the most recent Historical Loan
Modification Report, Historical Liquidation Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (B) a CMSA
Property File, a Comparative Financial Status Report and CMSA Financial File,
each with the required information as of the end of the preceding calendar month
(in each case combining the reports prepared by the Special Servicer and the
Master Servicer); (C) a Delinquent Loan Status Report, each with the required
information as of such Determination Date (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); (D) a Watch List
Report with the required information as of such Determination Date; and (E) an
Updated Collection Report.. Not later than 4:00 p.m. (New York City time) on the
third Business Day of each calendar month, the Master Servicer shall deliver or
cause to be delivered to the Paying Agent (in electronic format acceptable to
the Master Servicer and the Paying Agent) an Interim Delinquent Loan Status
Report.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Paying Agent the reports set forth in Section 3.12
in an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d), and the Master Servicer and the Paying Agent with respect
to the reports set forth in Section 3.12(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d). The Paying Agent
may, absent manifest error, conclusively rely on the CMSA Loan Periodic Update
File to be provided by the Master Servicer pursuant to Section 4.02(b). In the
case of information or reports to be furnished by the Master Servicer to the
Paying Agent pursuant to this Section 3.12, to the extent that such information
is based on reports to be provided by the Special Servicer pursuant to Section
3.12(b) and this Section 3.12(d) and, to the extent that such reports are to be
prepared and delivered by the Special Servicer pursuant to Section 3.12(b) and
this Section 3.12(d), the Master Servicer shall have no obligation to provide
such information or reports until it has received such information or reports
from the Special Servicer and the Master Servicer shall not be in default
hereunder due to a delay in providing the reports required by this Section 3.12
to the extent caused by the Special Servicer's failure to timely provide any
report required under Section 3.12(b) and this Section 3.12(d) of this
Agreement.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans shall each consistent with the Servicing Standard, endeavor to obtain
quarterly and annual operating statements and rent rolls with respect to the
related Mortgage Loans and REO Properties, which efforts shall include in the
case of Mortgage Loans, a letter sent to the related Mortgagor each quarter
(followed up with telephone calls) requesting such quarterly and annual
operating statements and rent rolls until they are received to the extent such
action is consistent with applicable law and the related Mortgage Loan
documents.
The Special Servicer shall promptly following receipt, deliver
copies of the operating statements and rent rolls received or obtained by it to
the Master Servicer, and the Master Servicer shall deliver copies of the
operating statements and rent rolls received or obtained by it to the Rating
Agencies, the Trustee, the Paying Agent, the Special Servicer or the Controlling
Class Representative in each case (other than the Rating Agencies and the
Controlling Class Representative which shall be sent copies within 30 days
following the Master Servicer's receipt) upon request.
Within 30 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and, with respect to any NOI Adjustment
Worksheet prepared or updated by the Special Servicer, forward to the Master
Servicer, an NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the annual operating statements attached thereto as an exhibit).
The Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
Operating Statement Analysis for each Mortgaged Property and REO Property, as
applicable. The Operating Statement Analysis for each Mortgaged Property and REO
Property is to be updated by each of the Master Servicer and the Special
Servicer, as applicable, within thirty days after its respective receipt of
updated operating statements for such Mortgaged Property or REO Property, as the
case may be, but in no event less frequently than annually by June 30th of each
year. The Master Servicer and the Special Servicer shall each use the
"Normalized" column from the NOI Adjustment Worksheet for any Mortgaged Property
or REO Property, as the case may be, to update the corresponding Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO Property, as the case may be, to prepare the
NOI Adjustment Worksheet for such property. Copies of Operating Statement
Analyses and NOI Adjustment Worksheets are to be made available by the Master
Servicer to the Trustee, the Paying Agent, the Special Servicer or the
Controlling Class Representative in each case upon request.
SECTION 3.13 Annual Statement as to Compliance.
---------------------------------
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Paying Agent, the Underwriters, the Controlling Class
Representative, and the Rating Agencies, and, in the case of the Special
Servicer, to the Master Servicer, on or before April 30 of each year, beginning
April 30, 2003, an Officers' Certificate stating, as to each signer thereof,
that (i) a review of the activities of the Master Servicer or the Special
Servicer, as the case may be, during the preceding calendar year and of its
performance under this Agreement has been made under such officer's supervision,
(ii) to the best of such officer's knowledge, based on such review, the Master
Servicer or the Special Servicer, as the case may be, has fulfilled all of its
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding qualification, or challenging the status,
of REMIC I or REMIC II as a REMIC under the REMIC Provisions or of the Grantor
Trust as a "Grantor Trust" for income tax purposes under the Grantor Trust
Provisions from the Internal Revenue Service or any other governmental agency or
body or, if it has received any such notice, specifying the details thereof. The
Master Servicer and Special Servicer shall deliver a copy of such Officer's
Certificate to the Depositor.
SECTION 3.14 Reports by Independent Public Accountants.
-----------------------------------------
On or before April 30 of each year, beginning April 30, 2003, each
of the Master Servicer and the Special Servicer at its expense shall cause a
firm of Independent public accountants (which may also render other services to
the Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee,
Underwriters, Rating Agencies, Controlling Class Representative, Depositor, and,
in the case of the Special Servicer, to the Master Servicer, to the effect that
such firm has examined the servicing operations of the Master Servicer or the
Special Servicer, as the case may be, for the previous calendar year (except
that the first such report shall cover the period from the Closing Date through
December 31, 2002) and that, on the basis of such examination, conducted
substantially in compliance with USAP, such firm confirms that the Master
Servicer or the Special Servicer, as the case may be, complied with the minimum
servicing standards identified in USAP, in all material respects, except for
such significant exceptions or errors in records that, in the opinion of such
firm, the USAP requires it to report. In rendering such statement, such firm may
rely, as to matters relating to direct servicing of mortgage loans by
Sub-Servicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers (rendered within one year of such statement) of independent public
accountants with respect to the related Sub-Servicer.
SECTION 3.15 Access to Certain Information.
-----------------------------
(a) Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i)
below), the Special Servicer (with respect to the items in clauses (d), (e),
(f), (g), (h) and (i) (to the extent not available from the Master Servicer)
below and the Paying Agent (with respect to the items in clause (b) and (i)
below and to the extent any other items are in its possession) shall make
available at their respective offices primarily responsible for administration
of the Mortgage Loans, during normal business hours, or send to the requesting
party, such party having been certified to the Paying Agent or the Master
Servicer, as applicable, in accordance with (a) and (b) in the following
paragraph, as appropriate, for review by any Certificate Owner or
Certificateholder or any person identified by a Certificate Owner or
Certificateholder or its designated agent to the Paying Agent, the Master
Servicer or the Special Servicer, as the case may be, as a prospective
transferee of any Certificate or interest therein, the Trustee, the Paying
Agent, the Rating Agencies, the Underwriters and anyone specified thereby and
the Depositor originals or copies of the following items (in each case at the
expense of the reviewing party unless otherwise provided in this Agreement): (a)
this Agreement and any amendments thereto, (b) all Distribution Date Statements
delivered to holders of the relevant Class of Certificates since the Closing
Date and all reports, statements and analyses delivered by the Master Servicer
since the Closing Date pursuant to Section 3.12(c), (c) all Officers'
Certificates delivered by the Master Servicer or the Special Servicer since the
Closing Date pursuant to Section 3.13, (d) all accountants' reports delivered to
the Master Servicer in respect of itself or the Special Servicer since the
Closing Date as described in Section 3.14, (e) the most recent property
inspection report prepared by or on behalf of the Master Servicer in respect of
each Mortgaged Property and any Environmental Assessments prepared pursuant to
Section 3.09, (f) the most recent Mortgaged Property annual operating statements
and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Special Servicer and the Asset Status Report prepared
pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage
Loan and (i) any and all Officers' Certificates and other evidence delivered by
the Master Servicer or the Special Servicer, as the case may be, to support its
determination that any Advance was, or if made, would be, a Nonrecoverable
Advance pursuant to Section 3.03(c), Section 3.20(d) and Section 4.03(c)
including appraisals affixed thereto and any Required Appraisal prepared
pursuant to Section 3.09(a). Copies of any and all of the foregoing items will
be available from the Master Servicer, the Special Servicer or the Trustee, as
the case may be, upon request and shall be provided to any of the Rating
Agencies at no cost pursuant to their reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative, in connection with providing
access to or copies of any items in accordance with this Agreement, the Paying
Agent or the Master Servicer (on behalf of itself and the Special Servicer), as
applicable, shall require: (a) in the case of Certificate Owners and the
Controlling Class Representative, a confirmation (which, in the case of a the
Controlling Class Representative may be a standing confirmation) executed by the
requesting Person substantially in the form of Exhibit V-1 hereto (or such other
form as may be reasonably acceptable to the Paying Agent or the Master Servicer,
as applicable) generally to the effect that such Person is a beneficial holder
of Book-Entry Certificates, or a representative of a beneficial holder of
Book-Entry Certificates, and, subject to the last sentence of this paragraph,
will keep such information confidential (except that such Certificate Owner and
the Controlling Class Representative may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential (and such Person shall execute and deliver a
confidentiality agreement in a form satisfactory to the Master Servicer, if
requested); and (b) in the case of a prospective purchaser of a Certificate or
an interest therein, confirmation executed by the requesting Person
substantially in the form of Exhibit V-2 hereto (or such other form as may be
reasonably acceptable to the Paying Agent or the Master Servicer, as applicable)
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information for use in
evaluating a possible investment in Certificates and, subject to the last
sentence of this paragraph, will otherwise keep such information confidential.
The Holders of the Certificates, by their acceptance thereof, and the
Controlling Class Representative, by its acceptance of its appointment, will be
deemed to have agreed, subject to the last sentence of this paragraph, to keep
such information confidential (except that any Holder may provide such
information obtained by it to any other Person that holds or is contemplating
the purchase of any Certificate or interest therein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential and (such Person shall
execute and deliver a confidentiality agreement in a form satisfactory to the
Master Servicer, if requested) and agrees not to use such information in any
manner that would violate federal, state or local securities laws.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Paying Agent or the Master
Servicer, as applicable, pursuant to this Section 3.15 that has previously been
made available without a password via the Paying Agent's or the Master
Servicer's, as applicable, Internet Website or has previously been filed with
the Commission, and the Paying Agent or the Master Servicer, as applicable,
shall not require either of the certifications contemplated by the second
preceding sentence in connection with providing any information pursuant to this
Section 3.15 that has previously been made available without a password via the
Paying Agent's or the Master Servicer's, as applicable, Internet Website or has
previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Paying Agent, the Rating Agencies and the Depositor, and to the
OTS, the FDIC, the Federal Reserve Board and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
The Paying Agent, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) The Paying Agent shall, and the Master Servicer may but is not
required to, make available each month to any interested party (i) the
Distribution Date Statement via their respective Internet Websites, and (ii) as
a convenience for interested parties this Agreement on their respective Internet
Websites. In addition, the Paying Agent shall make available each month, on each
Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic
Update File, the CMSA Loan Setup File, the CMSA Bond File, and the CMSA
Collateral Summary File to any interested party on its Internet Website. The
Paying Agent shall, upon request, make available each month, on each
Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA
Property File and the CMSA Financial File to any Privileged Person. The Paying
Agent shall make available each month, on the fourth Business Day of each
calendar month, the Interim Delinquent Loan Status Report to any interested
party on its Internet Website.
The Master Servicer may, but is not required to, make available each
month via its Internet Website (i) to any interested party, the Unrestricted
Servicer Reports, the CMSA Loan Setup File, and the CMSA Loan Periodic Update
File, and (ii) to any Privileged Person, with the use of a password provided by
the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File
and the CMSA Property File. Any (y) Restricted Servicer Report or Unrestricted
Servicer Report (other than the Interim Delinquent Loan Status Report) that is
not available on the Master Servicer's Internet Website as described in the
immediately preceding sentence by 5:00 p.m. (New York City time) on the related
Distribution Date, and (z) Interim Delinquent Loan Status Report that is not
available on the Master Servicer's Internet Website as described in the
immediately preceding sentence by 5:00 p.m. (New York City time) on the third
Business Day of each calendar month shall be provided (in electronic format, or
if electronic mail is unavailable, by facsimile) by the Master Servicer, upon
request, to any Person otherwise entitled to access such report on the Master
Servicer's Internet Website.
In connection with providing access to the Paying Agent's Internet
Website or the Master Servicer's Internet Website, the Paying Agent or the
Master Servicer, as applicable, may require registration and the acceptance of a
disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the Paying
Agent, and such application states that the Applicants' desire to communicate
with other Holders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Paying Agent shall, within five
Business Days after the receipt of such application, send, at the Applicants'
expense, the written communication proffered by the Applicants to all
Certificateholders at their addresses as they appear in the Certificate
Register.
(c) The Master Servicer and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from the
Master Servicer or the Special Servicer under this Agreement. The Paying Agent
shall not be liable for the dissemination of information in accordance with this
Section 3.15(c). The Paying Agent makes no representations or warranties as to
the accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
In addition, the Paying Agent, the Master Servicer and the Special Servicer may
disclaim responsibility for any information distributed by the Paying Agent, the
Master Servicer or the Special Servicer, respectively, for which it is not the
original source.
(d) Upon the request of the Controlling Class Representative made
not more frequently than once a month (which request may be a standing,
continuing request), or at such mutually acceptable time each month as the
Controlling Class Representative shall reasonably designate, each of the Master
Servicer and Special Servicer shall, without charge, make a knowledgeable
Servicing Officer available, at the option of the Controlling Class
Representative either by telephone or at the office of such Servicing Officer,
to answer questions from the Controlling Class Representative regarding the
performance and servicing of the Mortgage Loans and/or REO Properties for which
such Master Servicer or Special Servicer, as the case may be, is responsible.
The Master Servicer and each of the Special Servicers each shall condition such
disclosure upon the Controlling Class Representative entering into a reasonable
and customary confidentiality agreement reasonably acceptable to such servicer
and the Controlling Class Representative regarding such disclosure to it.
Neither the Master Servicer nor the Special Servicer shall be required to
provide any information or disclosures in violation of any applicable law, rule
or regulation.
SECTION 3.16 Title to REO Property; REO Account.
----------------------------------
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and, if applicable, the Companion Holder, as their
interests shall appear. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property as soon as practicable in accordance with the Servicing
Standard, but prior to the end of the third year following the calendar year in
which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies for, more
than sixty days prior to the end of such third succeeding year, and is granted
an extension of time (an "REO Extension") by the Internal Revenue Service to
sell such REO Property or (ii) obtains for the Trustee and the Paying Agent an
Opinion of Counsel, addressed to the Trustee, the Paying Agent, the Special
Servicer and the Master Servicer, to the effect that the holding by REMIC I of
such REO Property subsequent to the end of such third succeeding year will not
result in the imposition of taxes on "prohibited transactions" (as defined in
Section 860F of the Code) of either REMIC I or REMIC II or cause either REMIC I
or REMIC II to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall first be payable from the related REO Account to the
extent of available funds and then be a Servicing Advance by the Master
Servicer.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), held on behalf of the Trustee in trust for
the benefit of the Certificateholders and, if applicable, the Companion Holder,
as their interests shall appear, for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds (net of Liquidation Expenses) received in respect of an REO Property
within 2 Business Days of receipt. Funds in the REO Account may be invested in
Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from the REO Account to pay itself, as
additional servicing compensation in accordance with Section 3.11(d), interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the REO Account for any Collection Period). The Special
Servicer shall give written notice to the Trustee, the Paying Agent and the
Master Servicer of the location of the REO Account when first established and of
the new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property (including any monthly reserve or escrow
amounts necessary to accumulate sufficient funds for taxes, insurance and
anticipated capital expenditures (the "Impound Reserve")). On each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit into
the Certificate Account or deliver to the Master Servicer or such other Person
as may be directed by the Master Servicer (which shall deposit such amounts into
the Certificate Account) the aggregate of all amounts received in respect of
each REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that, in addition to the Impound Reserve, the Special Servicer may
retain in the REO Account such portion of proceeds and collections as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management and maintenance of the related REO Property (including, without
limitation, the creation of a reasonable reserve for repairs, replacements and
other related expenses).
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17 Management of REO Property.
--------------------------
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review, in its good faith and reasonable judgment, that:
(i) None of the income from Directly Operating such REO Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions (such tax referred to herein as an
"REO Tax"), and the Special Servicer does not engage in any of the
activities described in the definition of "Directly Operate" that would
cause the REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged
Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, such alternative is commercially
feasible and would result in a greater net recovery on a present value
basis than earning income subject to an REO Tax) acquire such Mortgaged
Property as REO Property and so lease or manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and,
in the reasonable judgement of the Special Servicer in accordance with the
Servicing Standard, that such method of operation is commercially feasible
and would result in a greater net recovery on a present value basis than
leasing or other method of operating the REO Property that would not incur
an REO Tax, the Special Servicer shall deliver to the REMIC Administrator,
in writing, a proposed plan (the "Proposed Plan") to manage such property
as REO Property. Such plan shall include potential sources of income, and
to the extent commercially feasible, estimates of the amount of income
from each such source. Within a reasonable period of time after receipt of
such plan, the REMIC Administrator shall consult with the Special Servicer
and shall advise the Special Servicer of the REMIC Administrator's federal
income tax reporting position with respect to the various sources of
income that the Trust Fund would derive under the Proposed Plan. In
addition, the REMIC Administrator shall (to the maximum extent possible)
advise the Special Servicer of the estimated amount of taxes that the
Trust Fund would be required to pay with respect to each such source of
income. After receiving the information described in the two preceding
sentences from the REMIC Administrator, the Special Servicer shall either
(A) implement the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage such property in a manner that
would not result in the imposition of an REO Tax on the income derived
from such property. All of the REMIC Administrator's expenses (including
any fees and expenses of counsel or other experts reasonably retained by
it) incurred pursuant to this section shall be reimbursed to it from the
Trust Fund in accordance with Section 10.01(f).
The Special Servicer's decision as to how each REO Property shall be
managed shall be based on the Servicing Standard and in any case on the good
faith and reasonable judgment of the Special Servicer as to which means would be
in the best interest of the Certificateholders by maximizing (to the extent
commercially feasible and consistent with Section 3.17(b)) the net after-tax REO
Revenues received by the Trust Fund with respect to such property and, to the
extent consistent with the foregoing, in the same manner as would prudent
mortgage loan servicers operating acquired mortgaged property comparable to the
respective Mortgaged Property. Both the Special Servicer and the REMIC
Administrator may, at the expense of the Trust Fund payable pursuant to Section
3.05(a)(xiv) consult with counsel.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve and protect such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not and will not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code
or either result in the receipt by REMIC I of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from the REO Account, to the extent of amounts on
deposit therein with respect to any REO Property, funds necessary for the proper
management, maintenance and disposition of such REO Property, including without
limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in the preceding
sentence with respect to such REO Property, the Master Servicer, subject to the
second paragraph of Section 3.03(c), shall make Servicing Advances in such
amounts as are necessary for such purposes unless (as evidenced by an Officers'
Certificate delivered to the Trustee) the Master Servicer would not make such
advances if the Master Servicer owned such REO Property or the Master Servicer
determines, in accordance with the Servicing Standard, that such payment would
be a Nonrecoverable Advance; provided, however, that the Master Servicer may
make any such Servicing Advance without regard to recoverability if it is a
necessary fee or expense incurred in connection with the defense or prosecution
of legal proceedings.
(c) Unless Section 3.17 (a)(i) applies, the Special Servicer shall
contract with any Independent Contractor (if required by the REMIC Provisions
for the REO Property to remain classified as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code) for the operation and management of
any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, without limitation, those listed in Section 3.17(b) above, and
remit all related revenues collected (net of its fees and such costs and
expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties.
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(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or an REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) After a Mortgage Loan becomes a Defaulted Mortgage Loan, the
Special Servicer shall determine the fair value of the Mortgage Loan in
accordance with the Servicing Standard; provided, however, that such
determination shall be made without taking into account any effect the
restrictions on the sale of such Mortgage Loan contained herein may have on the
value of such Defaulted Mortgage Loan; provided, further, that the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgage Property unless it has an Appraisal that is less
than 12 months old and has no actual knowledge of, or notice of, any event which
in the Special Servicer's judgment would materially affect the validity of such
Appraisal. The Special Servicer shall make its fair value determination as soon
as reasonably practicable (but in any event within thirty (30) days) after its
receipt of such new Appraisal, if applicable. The Special Servicer shall, from
time to time, but no less often than every 90 days, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with the Servicing Standard.
The Special Servicer shall notify the Trustee, the Master Servicer, each Rating
Agency and the Majority Subordinate Certificateholder promptly upon its fair
value determination and any adjustment thereto. The Special Servicer shall also
deliver to the Master Servicer and the Majority Subordinate Certificateholder
the most recent Appraisal of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports and other
information (excluding any documents determined in good faith by the Special
Servicer to be privileged work product) then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). Notwithstanding the foregoing,
the Special Servicer shall not be required to deliver the Determination
Information to the Master Servicer, and shall instead deliver the Determination
Information to the Trustee, if the Master Servicer will not be determining
whether the Option Price represents fair value for the Defaulted Mortgage Loan,
pursuant to this Section 3.18.
(c) In determining the fair value of any Defaulted Mortgage Loan,
the Special Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Mortgage Loan to the Option Holder. In
addition, the Special Servicer shall refer to all other relevant information
obtained by it or otherwise contained in the Mortgage Loan File; provided that
the Special Servicer shall take account of any change in circumstances regarding
the related Mortgaged Property known to the Special Servicer that has occurred
subsequent to, and that would, in the Special Servicer's reasonable judgment,
materially affect the value of the related Mortgaged Property reflected in the
most recent related Appraisal. Furthermore, the Special Servicer shall consider
all available objective third-party information obtained from generally
available sources, as well as information obtained from vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The Special Servicer
may rely on the information contained in reports of Independent third parties in
making such determination.
(d) Subject to the terms set forth in Section 2.03, in the event a
Mortgage Loan becomes a Defaulted Mortgage Loan, each of the Majority
Subordinate Certificateholder and the Special Servicer (with its assignees, an
"Option Holder") shall have an assignable option (a "Purchase Option") to
purchase such Defaulted Mortgage Loan from the Trust Fund at a price (the
"Option Price") equal to (i) the Purchase Price, if the Special Servicer has not
yet determined the fair value of the Defaulted Mortgage Loan, or (ii) the fair
value of the Defaulted Mortgage Loan as determined by the Special Servicer in
the manner described in Section 3.18(b) and in accordance with the Servicing
Standard, if the Special Servicer has made such fair value determination. Any
holder of a Purchase Option may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party at any
time after the related Mortgage Loan becomes a Defaulted Mortgage Loan. The
transferor of any Purchase Option shall notify the Trustee, the Paying Agent and
the Master Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and appropriate
contact person(s) and shall be acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Subordinate Certificateholder shall
have the right to exercise the Purchase Option prior to any exercise of the
Purchase Option by the Special Servicer; provided, however, if the Purchase
Option is not exercised by the Majority Subordinate Certificateholder or any
assignee thereof within 60 days of a Mortgage Loan becoming a Defaulted Mortgage
Loan, then the Special Servicer shall have the right to exercise its Purchase
Option prior to any exercise by the Majority Subordinate Certificateholder and
the Special Servicer or its assignee may exercise such Purchase Option at any
time during the fifteen day period immediately following the expiration of such
60-day period. Following the expiration of such fifteen day period, the Majority
Subordinate Certificateholder shall again have the right to exercise its
Purchase Option prior to any exercise of the Purchase Option by the Special
Servicer. If not exercised earlier, the Purchase Option with respect to any
Defaulted Mortgage Loan will automatically terminate (i) once the related
Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan; provided,
however, that if such Mortgage Loan subsequently becomes a Defaulted Mortgage
Loan, the related Purchase Option shall again be exercisable, (ii) upon the
acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed in lieu of foreclosure or (iii)
the modification or pay-off, in full or at a discount, of such Defaulted
Mortgage Loan in connection with a workout.
(e) [RESERVED]
(f) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, the holder (whether
the original grantee of such option or any subsequent transferee) of the
Purchase Option may exercise the Purchase Option by providing the Master
Servicer, the Paying Agent and the Trustee written notice thereof (the "Purchase
Option Notice"), in the form of Exhibit CC, which notice shall identify the
Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at least
equal to the Option Price. The Purchase Option Notice shall be delivered in the
manner specified in Section 11.05. The exercise of any Purchase Option pursuant
to this clause (e) shall be irrevocable.
(g) If the Special Servicer or any of its Affiliates or assignees,
is identified in the Purchase Option Notice as the Person expected to acquire
the related Mortgage Loan, and the Option Price is based upon the Special
Servicer's fair value determination, the Master Servicer shall determine whether
the Option Price represents fair value for the Defaulted Mortgage Loan, in the
manner set forth in Section 3.18(b) and as soon as reasonably practicable but in
any event within thirty (30) days (except as such period may be extended as set
forth in this paragraph) of its receipt of the Purchase Option Notice and
Determination Information from the Special Servicer. In determining whether the
Option Price represents the fair value of such Defaulted Mortgage Loan, the
Master Servicer may obtain an opinion as to the fair value of such Defaulted
Mortgage Loan, taking into account the factors set forth in Section 3.18(b),
from an Independent Appraiser or other Independent expert of recognized standing
having experience in evaluating the value of defaulted mortgage loans which
opinion shall be based on a review, analysis and evaluation of the Determination
Information, and to the extent such an Independent Appraiser or third party
deems any such Determination Information to be defective, incorrect,
insufficient or unreliable, such Person may base its opinion on such other
information it deems reasonable or appropriate, and, absent manifest error, the
Master Servicer may conclusively rely on the opinion of any such Person which
was chosen by the Master Servicer with reasonable care. Notwithstanding the
thirty (30) day time period referenced above in this paragraph, the Master
Servicer will have an additional fifteen (15) days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(g) to the
contrary, if the Special Servicer or any of its Affiliates or assignees, is
identified in the Purchase Option Notice as the Person expected to acquire the
related Mortgage Loan, and the Option Price is based upon the Special Servicer's
fair value determination, and the Master Servicer and the Special Servicer are
Affiliates, the Trustee shall determine whether the Option Price represents fair
value for the Defaulted Mortgage Loan, in the manner set forth in Section
3.18(b) and as soon as reasonably practicable but in any event within thirty
(30) days (except as such period may be extended as set forth in this paragraph)
of its receipt of the Purchase Option Notice and Determination Information from
the Special Servicer. In determining whether the Option Price represents the
fair value of such Defaulted Mortgage Loan, the Trustee may obtain an opinion as
to the fair value of such Defaulted Mortgage Loan, taking into account the
factors set forth in Section 3.18(b), from an Independent Appraiser or other
Independent expert of recognized standing having experience in evaluating the
value of defaulted mortgage loans which opinion shall be based on a review,
analysis and evaluation of the Determination Information, and to the extent such
an Independent Appraiser or third party deems any such Determination Information
to be defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person which was chosen by the Trustee with reasonable care. Notwithstanding the
thirty (30) day time period referenced above in this paragraph, the Trustee will
have an additional fifteen (15) days to make a fair value determination if the
Person referenced in the immediately preceding sentence has determined that the
Determination Information is defective, incorrect, insufficient or unreliable.
The reasonable costs of all appraisals, inspection reports and opinions of
value, reasonably incurred by the Trustee or any such third party pursuant to
this paragraph shall be advanced by the Master Servicer and shall constitute,
and be reimbursable as, Servicing Advances. In connection with the Trustee's
determination of fair value the Special Servicer shall deliver to the Trustee
the Determination Information for the use of the Trustee or any such third
party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Mortgage Loan, such party
shall provide its determination, together will all information and reports it
relied upon in making such determination, to the Special Servicer, the Master
Servicer or the Trustee, as the case may be, who shall then adjust its fair
value determination and, consequently, the Option Price, pursuant to Section
3.18(b). The Special Servicer shall promptly provide written notice of any
adjustment of the Option Price to the Option Holder whose Purchase Option has
been declared effective pursuant to Section 3.18(f) above. Upon receipt of such
notice, such Option Holder shall have three (3) Business Days to (i) accept the
Option Price as adjusted and proceed in accordance with Section 3.18(h) below,
or (ii) reject the Option Price as adjusted, in which case such Option Holder
shall not be obligated to close the purchase of the Defaulted Mortgage Loan.
Upon notice from such Option Holder, or the Special Servicer, that such Option
Holder rejects the Option Price as adjusted, the Master Servicer and the Trustee
shall provide the notices described in Section 3.18(i) below and thereafter any
Option Holder may exercise its purchase option in accordance with this Section
3.18, at the Option Price as adjusted.
(h) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(f) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten (10)
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Mortgage Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price (except that portion of any purchase price
constituting Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale
Reserve Account) into the Certificate Account after deduction of the expenses of
such sale incurred in connection therewith, within one (1) Business Day
following receipt.
(i) The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(i). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(j) Unless and until the Purchase Option with respect to a Defaulted
Mortgage Loan is exercised, the Special Servicer shall pursue such other
resolution strategies available hereunder with respect to such Defaulted
Mortgage Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate consistent with the Servicing Standard;
provided, however, the Special Servicer will not be permitted to sell the
Defaulted Mortgage Loan other than in connection with the exercise of the
related Purchase Option.
(k) In the event that title to any REO Property is acquired by the
Trust in respect of any Defaulted Mortgage Loan, the deed or certificate of sale
shall be issued to the Trust, the Trustee or to its nominees. The Special
Servicer, after notice to the Controlling Class Representative, shall use its
reasonable best efforts to sell any REO Property as soon as practicable in
accordance with Section 3.16(a). If the Special Servicer on behalf of the
Trustee has not received an REO Extension or an Opinion of Counsel described in
Section 3.16(a) and the Special Servicer is not able to sell such REO Property
within the period specified above, or if an REO Extension has been granted and
the Special Servicer is unable to sell such REO Property within the extended
time period, the Special Servicer shall, after consultation with the Controlling
Class Representative, before the end of such period or extended period, as the
case may be, auction the REO Property to the highest bidder (which may be the
Special Servicer) in accordance with the Servicing Standard. The Special
Servicer shall give the Controlling Class Representative, the Master Servicer,
the Paying Agent and the Trustee not less than five days' prior written notice
of its intention to sell any REO Property, and in respect of such sale, the
Special Servicer shall offer such REO Property in a commercially reasonable
manner. Where any Interested Person is among those bidding with respect to an
REO Property, the Special Servicer shall require that all bids be submitted in
writing and be accompanied by a refundable deposit of cash in an amount equal to
5% of the bid amount. No Interested Person shall be permitted to purchase the
REO Property at a price less than the Purchase Price; and provided, further that
if the Special Servicer intends to bid on any REO Property, (i) the Special
Servicer shall notify the Trustee of such intent, (ii) the Trustee shall
promptly obtain, at the expense of the Trust, an Appraisal of such REO Property
and (iii) the Special Servicer shall not bid less than the greater of (a) the
fair market value set forth in such Appraisal or (b) the Purchase Price. The
rights of any Mortgage Loan Seller to purchase an REO Property pursuant to
Section 2.03(f) shall supersede any rights to purchase an REO Property pursuant
to this Section 3.18(k).
(l) Subject to the REMIC Provisions, the Special Servicer shall act
on behalf of the Trust in negotiating and taking any other action necessary or
appropriate in connection with the sale of any REO Property or the exercise of a
Purchase Option, including the collection of all amounts payable in connection
therewith. Notwithstanding anything to the contrary herein, neither the Trustee,
in its individual capacity, nor any of its Affiliates may bid for or purchase
any REO Property or purchase any Defaulted Mortgage Loan. Any sale of a
Defaulted Mortgage Loan (pursuant to a Purchase Option) or an REO Property shall
be without recourse to, or representation or warranty by, the Trustee, the
Paying Agent, the Depositor, the Special Servicer, the Master Servicer, any
Mortgage Loan Seller or the Trust. Notwithstanding the foregoing, nothing herein
shall limit the liability of the Master Servicer, the Special Servicer, the
Paying Agent or the Trustee to the Trust and the Certificateholders for failure
to perform its duties in accordance herewith. None of the Special Servicer, the
Master Servicer, the Depositor, the Paying Agent or the Trustee shall have any
liability to the Trust or any Certificateholder with respect to the price at
which a Defaulted Mortgage Loan is sold if the sale is consummated in accordance
with the terms of this Agreement.
(m) Notwithstanding Section 3.18(d) or Section 3.18(j), pursuant
to the terms of the Abbey Intercreditor Agreement, the Abbey Mezzanine Lender
will have the right to purchase the Mortgage Loans described in the Abbey
Intercreditor Agreement at the Purchase Price (as long as an event of default
has occurred and is continuing under the related Mortgage Loan documents) and
such right shall have priority over any provision of Section 3.18(d) or Section
3.18(j); provided, however, with respect to this Section 3.18(m) that if the
Abbey Mezzanine Lender does not exercise its right to purchase the applicable
Mortgage Loan within the 15 day time period pursuant to the Abbey Intercreditor
Agreement, with respect to any purchase of the applicable Mortgage Loan, the
Abbey Mezzanine Lender will be required to pay an amount equal to 1% of the
purchase price of the applicable Mortgage Loan to the Special Servicer as a
Principal Recovery Fee (and such Principal Recovery Fee will not be an expense
of the Trust).
(n) Notwithstanding anything herein to the contrary, the Special
Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative that would cause it to
violate applicable law or any term or provision of this Agreement, including the
REMIC Provisions and the Servicing Standard.
(o) The amount paid for a Defaulted Mortgage Loan or related REO
Property purchased under this Agreement shall be deposited into the Certificate
Account, or if applicable, applied in accordance with the related CLF
Intercreditor Agreement. Upon receipt of an Officers' Certificate from the
Master Servicer to the effect that such deposit has been made, the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the purchaser of such Defaulted Mortgage Loan or related REO Property
ownership of the Defaulted Mortgage Loan or REO Property. The Custodian, upon
receipt of a Request for Release, shall release or cause to be released to the
Master Servicer or Special Servicer the related Mortgage File. In connection
with any such purchase, the Special Servicer shall deliver the related Servicing
File to the purchaser of a Defaulted Mortgage Loan or related REO Property.
SECTION 3.19 Additional Obligations of Master Servicer and
Special Servicer.
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(a) The Master Servicer shall deposit in the Certificate Account on
each P&I Advance Date, without any right of reimbursement therefor with respect
to each Mortgage Loan (other than a Specially Serviced Mortgage Loan) that was
subject to a Principal Prepayment during the most recently ended Collection
Period creating a Prepayment Interest Shortfall, an amount equal to the lesser
of (i) the amount of the related Prepayment Interest Shortfall and (ii) the sum
of (A) the Master Servicing Fee (calculated for this purpose only at a rate of
0.025% per annum) received by the Master Servicer during such Collection Period
on such Mortgage Loan and (B) investment income earned by the Master Servicer on
the related Principal Prepayment during the most recently ended Collection
Period; provided, however, that to the extent such Prepayment Interest Shortfall
is the result of the Master Servicer's failure to enforce the obligation of the
Mortgagor, to the extent not otherwise consistent with the Servicing Standard or
otherwise consented to by the Controlling Class Representative, to pay interest
through the next Due Date under the Mortgage Loan documents, the amount
specified in clause (i) above shall include the remainder of the Master
Servicing Fee with respect to such Mortgage Loan for such Collection Period as
well as the remainder of all Master Servicing Fees with respect to Mortgage
Loans other than such Mortgage Loan for such Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor in writing of the transfer of such Mortgage Loan to the Trust Fund
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
(c) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to the Master Servicer and the related Sub-Servicer any
other information and copies of any other documents in its possession with
respect to a Specially Serviced Mortgage Loan or the related Mortgaged Property.
Upon reasonable request of the Special Servicer, the Master Servicer shall
deliver to the Special Servicer any other information and copies of any other
documents in its possession with respect to a non-Specially Serviced Mortgage
Loan or the related Mortgaged Property.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
-----------------------------------------------
(a) Subject to Sections 3.20(b) through 3.20(j) below and further
subject to Sections 3.08(b) and 6.11, the Master Servicer (to the extent
provided in Section 3.02(a) and Section 3.20(i) below) and the Special Servicer
may, on behalf of the Trustee, agree to any modification, waiver or amendment of
any term of any Mortgage Loan (including, subject to Section 3.20(i), the lease
reviews and lease consents related thereto) without the consent of the Trustee
or any Certificateholder. The Master Servicer shall promptly provide to the
Special Servicer any request it receives for an amendment, waiver or
modification.
(b) All modifications, waivers or amendments of any Mortgage Loan
(including, subject to Section 3.20(i), the lease reviews and lease consents
related thereto) shall be in writing and shall be considered and effected in
accordance with the Servicing Standard; provided however, that neither the
Master Servicer nor the Special Servicer, as applicable, shall make or permit or
consent to, as applicable, any modification, waiver or amendment of any term of
any Mortgage Loan not otherwise permitted by this Section 3.20 that would
constitute a "significant modification" of such Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b).
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest and amounts payable as
additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released other than in connection with a taking of all or part of
the related Mortgaged Property or REO Property for not less than fair
market value by exercise of the power of eminent domain or condemnation or
casualty or hazard losses with respect to such Mortgaged Property or REO
Property; or
(iv) if such Mortgage Loan is equal to or in excess of 5% of the
then aggregate current principal balances of all Mortgage Loans or
$20,000,000 or one of the ten largest Mortgage Loans by Stated Principal
Balance, permit the transfer or transfers of (A) the related Mortgaged
Property or any interest therein or (B) equity interests in the borrower
or any equity owner of the borrower that would result, in the aggregate
during the term of the related Mortgage Loan, in a transfer greater than
49% of the total interest in the borrower and/or any equity owner of the
borrower or a transfer of voting control in the borrower or an equity
owner of the borrower without the prior written confirmation from each
Rating Agency that such changes will not result in the qualification,
downgrade or withdrawal to the ratings then assigned to the Certificates;
(v) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon; or
(vi) impair the value or enforceability of a Lease Enhancement
Policy.
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), and the rights of the Controlling Class
Representative set forth in Section 6.11, the Special Servicer may (i) reduce
the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Periodic Payment on any Specially Serviced
Mortgage Loan, including by way of a reduction in the related Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any Mortgage Note or
Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the
maturity date of any Specially Serviced Mortgage Loan, or (v) accept a Principal
Prepayment on any Specially Serviced Mortgage Loan during any Lockout Period;
provided that (A) the related Mortgagor is in default with respect to the
Specially Serviced Mortgage Loan or, in the reasonable, good faith judgment of
the Special Servicer, such default is reasonably foreseeable, and (B) in the
reasonable, good faith judgment of the Special Servicer, such modification would
increase the recovery on the Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate). In the case of every other modification, waiver or consent, the Special
Servicer shall determine and may rely on an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the Trust Fund to the extent not paid by the
related Mortgagor) to the effect that such modification, waiver or amendment
would not both (1) effect an exchange or reissuance of the Mortgage Loan under
Treasury Regulations Section 1.860G-2(b) and (2) cause REMIC I or REMIC II to
fail to qualify as a REMIC under the Code or result in the imposition of any tax
on "prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the
third paragraph of this Section 3.20(d), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and the Special Servicer has obtained an
appraisal in accordance with the standards of the Appraisal Institute of the
related Mortgaged Property, performed by an Independent Appraiser, in connection
with such extension, which appraisal supports the determination of the Special
Servicer contemplated by clause (B) of the proviso to the immediately preceding
paragraph.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) reduce the Mortgage Rate of a Mortgage Loan to less than
the lesser of (A) the original Mortgage Rate of such Mortgage Loan, (B) the
highest Pass-Through Rate of any Class of Certificates (other than the Class IO
Certificates) then outstanding and (C) a rate below the then prevailing interest
rate for comparable loans, as determined by the Special Servicer, (iii) if the
Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee
simple interest), extend the maturity date of such Mortgage Loan beyond a date
which is less than 20 years prior to the expiration of the term of such Ground
Lease; (iv) defer interest due on any Mortgage Loan in excess of 10% of the
Stated Principal Balance of such Mortgage Loan or defer the collection of
interest on any Mortgage Loan without accruing interest on such deferred
interest at a rate at least equal to the Mortgage Rate of such Mortgage Loan.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(d) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee, the Paying
Agent and the Master Servicer and describing in reasonable detail the basis for
the Special Servicer's determination. The Special Servicer shall append to such
Officer's Certificate any information including but not limited to income and
expense statements, rent rolls, property inspection reports and appraisals that
support such determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in no way limit
the Special Servicer's ability to charge and collect from the Mortgagor costs
otherwise collectible under the terms of the related Mortgage Note and this
Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below, the
Master Servicer may, as a condition to granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, provided such fee
would not itself be a "significant modification" pursuant to Treasury
Regulations Section 1.1001-3(e)(2) and (ii) any related costs and expenses
incurred by it. In no event shall the Special Servicer be entitled to payment
for such fees or expenses unless such payment is collected from the related
Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related Sub-Servicers, the Trustee, the Paying Agent, the Controlling Class
Representative and the Rating Agencies, in writing, of any material
modification, waiver or amendment of any term of any Mortgage Loan (including
fees charged the Mortgagor) and the date thereof, and shall deliver to the
Custodian for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly (and
in any event within ten Business Days) following the execution thereof. Copies
of each agreement whereby any such modification, waiver or amendment of any term
of any Mortgage Loan is effected shall be made available for review upon prior
request during normal business hours at the offices of the Special Servicer
pursuant to Section 3.15(g) hereof.
(h) The Master Servicer shall not permit defeasance of any Mortgage
Loan (x) on or before the earliest date on which defeasance is permitted under
the terms of such Mortgage Loan, and (y) to the extent inconsistent with the
terms of such Mortgage Loan, and if the terms of the Mortgage Loan grant the
Master Servicer the right to require defeasance, the Master Servicer shall act
in accordance with the Servicing Standard to require defeasance. Unless and to
the extent the Master Servicer is precluded from preventing such defeasance by
the related Mortgage Loan documents or otherwise (provided that the Master
Servicer shall not allow such defeasance to cause any REMIC created hereunder to
fail to qualify as a REMIC, and provided further, the Master Servicer may rely
on an Opinion of Counsel as provided for in (ii) below), the Master Servicer
will not permit defeasance of any Mortgage Loan, unless: (i) the defeasance
collateral consists of "Government Securities" within the meaning of the
Investment Company Act of 1940, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event (provided that the Master
Servicer shall be entitled to rely conclusively on an Opinion of Counsel to that
effect), (iii) the Master Servicer has notified the Rating Agencies, (iv) each
Rating Agency has confirmed that such defeasance will not result in the
qualification, downgrade or withdrawal of the rating then assigned to any Class
of Certificates to which a rating has been assigned by either Rating Agency, (v)
the Master Servicer has requested and received from the related Mortgagor (A) an
Opinion of Counsel generally to the effect that the Trustee will have a
perfected, first priority security interest in such defeasance collateral and
(B) written confirmation from a firm of Independent accountants stating that
payments made on such defeasance collateral in accordance with the terms thereof
will be sufficient to pay the subject Mortgage Loan in full on or before its
Stated Maturity Date and in accordance with the Periodic Payment (or, in the
case of an ARD Loan, on or before its Anticipated Repayment Date) and to timely
pay each Periodic Payment scheduled to be due prior thereto but after the
defeasance and (vi) a single purpose entity (as defined below) is designated to
assume the Mortgage Loan and own the defeasance collateral; provided that, if
under the terms of the related Mortgage Loan documents, the related Mortgagor
delivers cash to purchase the defeasance collateral rather than the defeasance
collateral itself, the Master Servicer shall purchase the U.S. government
obligations contemplated by the related Mortgage Loan documents. Subsequent to
the second anniversary of the Closing Date, to the extent that the Master
Servicer can, in accordance with the related Mortgage Loan documents, require
defeasance of any Mortgage Loan in lieu of accepting a prepayment of principal
thereunder, including a prepayment of principal accompanied by a Prepayment
Premium or Yield Maintenance Charge, the Master Servicer shall, to the extent it
is consistent with the Servicing Standard, require such defeasance, provided
that the conditions set forth in clauses (i) through (vi) of the preceding
sentence have been satisfied. Any customary and reasonable out-of-pocket expense
incurred by the Master Servicer pursuant to this Section 3.20(h) shall be paid
by the Mortgagor of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document. Notwithstanding the foregoing, if at
any time, a court with jurisdiction in the matter shall hold that the related
Mortgagor may obtain a release of the subject Mortgaged Property but is not
obligated to deliver the full amount of the defeasance collateral contemplated
by the related Mortgage Loan documents (or cash sufficient to purchase such
defeasance collateral), then the Master Servicer shall (i) if consistent with
the related Mortgage Loan documents, refuse to allow the defeasance of the
Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the related
Mortgagor has delivered cash to purchase the defeasance collateral, the Master
Servicer shall either (A) buy such defeasance collateral or (B) prepay the
Mortgage Loan, in either case, in accordance with the Servicing Standard. For
purposes of this paragraph, a "single purpose entity" shall mean a Person, other
than an individual, whose organization documents provide as follows: it is
formed solely for the purpose of owning and operating a single property,
assuming a Mortgage Loan and owning and pledging the Defeasance Collateral; it
may not engage in any business unrelated to such property and the financing
thereof; it does not have and may not own any assets other than those related to
its interest in the property or the financing thereof and may not incur any
indebtedness other than as permitted by the related Mortgage; it shall maintain
its own books, records and accounts, in each case which are separate and apart
from the books, records and accounts of any other person; it shall hold regular
meetings, as appropriate, to conduct its business, and shall observe all
entity-level formalities and record keeping; it shall conduct business in its
own name and use separate stationery, invoices and checks; it may not guarantee
or assume the debts or obligations of any other person; it shall not commingle
its assets or funds with those of any other person; it shall pay its obligations
and expenses from its own funds and allocate and charge reasonably and fairly
any common employees or overhead shared with affiliates; it shall prepare
separate tax returns and financial statements or, if part of a consolidated
group, shall be shown as a separate member of such group; it shall transact
business with affiliates on an arm's length basis pursuant to written
agreements; and it shall hold itself out as being a legal entity, separate and
apart from any other person. The single purpose entity organizational documents
shall provide that any dissolution and winding up or insolvency filing for such
entity requires the unanimous consent of all partners or members, as applicable,
and that such documents may not be amended with respect to the single purpose
entity requirements during the term of the Mortgage Loan. For the avoidance of
doubt, the Special Servicer shall have no obligation to perform any action in
connection with a defeasance.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage
Loan and subject to the rights of the Special Servicer set forth in this Section
3.20, the Master Servicer shall be responsible for any request by a Mortgagor
for the consent of the mortgagee for a modification, waiver or amendment of any
term with respect to:
(i) approving routine leasing activity (including any subordination,
standstill and attornment agreements) with respect to any lease for less
than the lesser of (a) 30,000 square feet and (b) 20% of the related
Mortgaged Property;
(ii) approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged Property,
provided that no such budget (1) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (2) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-off Date);
(iv) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment; and
(v) approving certain consents with respect to right-of-ways and
easements and consent to subordination of the related Mortgage Loan to
such easements or right-of-ways.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Penalty Interest or late charge in respect of any Mortgage
Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the respective
amounts of additional servicing compensation payable to the Master Servicer and
the Special Servicer under Section 3.11 out of such Penalty Interest or late
payment charges shall be reduced proportionately, based upon the respective
amounts that had been payable thereto out of such Penalty Interest or late
payment charges immediately prior to such waiver.
(k) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall take
the following action unless it has received prior written confirmation (the cost
of which shall be paid by the related Mortgagor, if so allowed by the terms of
the related loan documents) from the Rating Agencies that such action will not
result in a qualification, downgrade or withdrawal of any of the ratings
assigned by such Rating Agency to the Certificates:
(i) With respect to any Mortgaged Property that secures a Mortgage
Loan with an unpaid principal balance that is at least equal to five
percent (5%) of the then aggregate principal balance of all Mortgage Loans
or $20,000,000, the giving of any consent, approval or direction regarding
the termination of the related property manager or the designation of any
replacement property manager; and
(ii) With respect to each Mortgage Loan with an unpaid principal
balance that is equal to or greater than (A) two percent (2%) of the then
aggregate principal balance of all the Mortgage Loans or (B) $10,000,000
and which is secured by a Mortgaged Property which is a hospitality
property, the giving of any consent to any change in the franchise
affiliation of such Mortgaged Property.
(l) The Special Servicer shall not consent to the modification,
waiver or amendment of a Lease Enhancement Policy without receiving prior
written confirmation from each Rating Agency that such modification, waiver or
amendment will not result in a qualification, downgrade or withdrawal of the
ratings on the Certificates. The Master Servicer shall not consent to any
modification, waiver or amendment of any Lease Enhancement Policy.
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
-------------------------------------------------
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall promptly notify the
Trustee and the Paying Agent, and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver or cause to be delivered a copy of the related Mortgage File and
Servicing File, to the Special Servicer and shall use reasonable efforts to
provide the Special Servicer with all information, documents (or copies thereof)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Mortgage Loan either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event; provided, however, if the
information, documents and records requested by the Special Servicer are not
contained in the Servicing File, the Master Servicer shall have such period of
time as reasonably necessary to make such delivery. Notwithstanding the
occurrence of a Servicing Transfer Event, the Master Servicer shall continue to
receive payments on such Mortgage Loan (including amounts collected by the
Special Servicer).
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof to the
Master Servicer, and shall return the related Mortgage File and Servicing File
and all other information, documents and records that were not part of the
Servicing File when it was delivered to the Special Servicer within five
Business Days of the occurrence, to the Master Servicer (or such other Person as
may be directed by the Master Servicer) and upon giving such notice, and
returning such Servicing File, to the Master Servicer (or such other Person as
may be directed by the Master Servicer), the Special Servicer's obligation to
service such Mortgage Loan and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor.
(c) On or before the Business Day following each Determination Date,
the Special Servicer shall deliver to the Master Servicer and each Rating Agency
(or such other Person as may be directed by the Master Servicer) a statement in
writing and in computer readable format (the form of such statement to be agreed
upon by the Master Servicer) describing, on a loan-by-loan and
property-by-property basis, (1) insofar as it relates to Specially Serviced
Mortgage Loans and REO Properties, the information described in clauses (x)
through (xiii) of Section 4.02(a) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxiv) and (xxv) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds and Liquidation
Proceeds received, and the amount of any Realized Loss incurred, with respect to
each Specially Serviced Mortgage Loan during the related Collection Period, and
the amount of all REO Revenues, Insurance Proceeds and Liquidation Proceeds
received, and the amount of any Realized Loss incurred, with respect to each REO
Property during the related Collection Period, and (3) such additional
information relating to the Specially Serviced Mortgage Loans and REO Properties
as the Master Servicer reasonably requests to enable it to perform its
responsibilities under this Agreement. Notwithstanding the foregoing provisions
of this subsection (c), the Master Servicer shall maintain ongoing payment
records with respect to each of the Specially Serviced Mortgage Loans and REO
Properties and shall provide the Special Servicer with any information
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
(d) No later than 30 days after a Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Special Servicer shall deliver to each Rating
Agency, the Trustee, the Paying Agent, the Master Servicer and the Controlling
Class Representative, a report (the "Asset Status Report") with respect to such
Loan and the related Mortgaged Property. Such Asset Status Report shall set
forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Specially Serviced Mortgage Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status Report
containing a specific request pursuant to Section 6.11 for consent with respect
to a recommended action for which the Controlling Class Representative is
entitled to object under Section 6.11, the Controlling Class Representative does
not disapprove such Asset Status Report in writing, the Special Servicer shall
implement the recommended action as outlined in such Asset Status Report;
provided, however, that the Special Servicer may not take any action that is
contrary to this Agreement, applicable law, the Servicing Standard, or the terms
of the applicable Mortgage Loan documents and provided further that an Asset
Status Report is not intended to be a substitution for the specific requests for
approval set forth in Section 6.11. If the Controlling Class Representative
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Controlling Class Representative, the
Rating Agencies and the Master Servicer a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section 3.21(d). Notwithstanding the foregoing, the Special Servicer (i)
may take any action set forth in such Asset Status Report (and consistent with
the terms hereof) before the expiration of a ten (10) Business Day period if the
Special Servicer has reasonably determined that failure to take such action
would materially and adversely affect the interests of the Certificateholders
and it has made a reasonable effort to contact the Controlling Class
Representative and (ii) in any case, shall determine whether such affirmative
disapproval is not in the best interest of all the Certificateholders pursuant
to the Servicing Standard; provided that, in the event that the Special Servicer
determines that immediate action is necessary to protect the interests of the
Certificateholders (as a collective whole), the Special Servicer may take any
such action without waiting for the Controlling Class Representative's response.
Upon making such determination in clause (ii) of the immediately
preceding paragraph, the Special Servicer shall notify the Trustee and the
Paying Agent of such rejection and deliver to the Paying Agent a proposed notice
to Certificateholders which shall include a copy of the Asset Status Report, and
the Paying Agent shall send such notice to all Certificateholders. If the
majority of such Certificateholders, as determined by Voting Rights, fail,
within 5 days of the Paying Agent's sending such notice, to reject such Asset
Status Report, the Special Servicer shall implement the same. If the Asset
Status Report is rejected by a majority of the Certificateholders, (other than
for a reason which violates the Servicing Standard, which shall control), the
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) and provide a copy of such revised report to the Master
Servicer. The Paying Agent shall be entitled to reimbursement from the Trust
Fund for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Mortgage Loan and take such actions consistent with the
Servicing Standard, the terms of the related Mortgage Loan, the terms hereof and
the related Asset Status Report. The Special Servicer shall not take any action
inconsistent with the related Asset Status Report, unless such action would be
required in order to act in accordance with the Servicing Standard.
No direction of the Controlling Class Representative or the majority
of the Certificateholders shall (a) require or cause the Special Servicer to
violate the terms of a Mortgage Loan, applicable law or any provision of this
Agreement, including the Special Servicer's obligation to act in accordance with
the Servicing Standard and to maintain the REMIC status of each REMIC, (b)
result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions or (c) expose the Master Servicer,
the Special Servicer, the Depositor, any of the Mortgage Loan Sellers, the Trust
Fund, the Paying Agent or the Trustee or the officers and the directors of each
party to claim, suit or liability or (d) expand the scope of the Master
Servicer's, Trustee's, Paying Agent's or Special Servicer's responsibilities
under this Agreement and the Special Servicer shall disregard any such
direction.
SECTION 3.22 Sub-Servicing Agreements.
------------------------
(a) The Master Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided that, in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof (other than
Section 7.01(a)(x) and (xi)) to the extent applicable (modified to apply to the
Sub-Servicer instead of the Master Servicer); (ii) provides that if the Master
Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the Trustee
or its designee may thereupon assume all of the rights and, except to the extent
such obligations arose prior to the date of assumption, obligations of the
Master Servicer under such agreement or (except with respect only to the
Sub-Servicing Agreements in effect as of the date of this Agreement) may
terminate such subservicing agreement without cause and without payment of any
penalty or termination fee (other than the right of reimbursement and
indemnification); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer thereunder as contemplated by the immediately preceding
clause (ii)) none of the Trustee, the Paying Agent, the Trust Fund, any
successor Master Servicer or any Certificateholder shall have any duties under
such agreement or any liabilities arising therefrom; (iv) permits any purchaser
of a Mortgage Loan pursuant to this Agreement to terminate such agreement with
respect to such purchased Mortgage Loan at its option and without penalty, and
(v) does not permit the Sub-Servicer any direct rights of indemnification that
may be satisfied out of assets of the Trust Fund. In addition, each
Sub-Servicing Agreement entered into by the Master Servicer shall provide that
such agreement shall be subject to Section 3.21 hereof with respect to any
Mortgage Loan that becomes a Specially Serviced Mortgage Loan. The Master
Servicer shall deliver to the Trustee copies of all Sub-Servicing Agreements,
and any amendments thereto and modifications thereof, entered into by it
promptly upon its execution and delivery of such documents. References in this
Agreement to actions taken or to be taken by the Master Servicer include actions
taken or to be taken by a Sub-Servicer on behalf of the Master Servicer; and, in
connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer hereunder to make P&I Advances or Servicing
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer. For so long as they are
outstanding, Advances shall accrue interest in accordance with Sections 3.03(d)
and 4.03(d), such interest to be allocable between the Master Servicer and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer shall be deemed to have received any payment when a Sub-Servicer
retained by it receives such payment. The Master Servicer shall notify the
Trustee, the Special Servicer, the Controlling Class Representative and the
Depositor in writing promptly of the appointment by it of any Sub-Servicer
appointed after the Closing Date.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law, and shall be an
approved conventional seller/servicer of mortgage loans for FHLMC or FNMA or a
HUD-Approved Servicer.
(c) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of its
Sub-Servicers under the related Sub-Servicing Agreements. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer in its good faith
business judgment, would require were it the owner of the Mortgage Loans.
Subject to the terms of the related Sub-Servicing Agreement, the Master Servicer
may each have the right to remove a Sub-Servicer at any time it considers such
removal to be in the best interests of Certificateholders.
(d) In the event of the resignation, removal or other termination of
First Union National Bank or any successor Master Servicer hereunder for any
reason, the Trustee or other Person succeeding such resigning, removed or
terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the date of this Agreement: (i) to
assume the rights and obligations of the Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer on such terms as the Trustee or other successor Master Servicer and
such Sub-Servicer shall mutually agree (it being understood that such
Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an Event of Default (as defined in such Sub-Servicing Agreement)
has occurred and is continuing, in each case without paying any sub-servicer
termination fee.
Each Sub-Servicing Agreement will provide, among other things, that
the Master Servicer and its successors may at its sole option, terminate any
rights the Sub-Servicer may have thereunder with respect to any or all Mortgage
Loans if Xxxxx'x (i) reduces the rating assigned to one or more Classes of the
respective Certificates as a result of the sub-servicing of the Mortgage Loans
by the Sub-Servicer, or (ii) advises the Master Servicer or the Trustee in
writing that it will cause a qualification, downgrade or withdrawal of such
rating due to the continued servicing by the Sub-Servicer.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
shall remain obligated and liable to the Special Servicer, the Trustee and the
Certificateholders for the performance of its obligations and duties under this
Agreement in accordance with the provisions hereof to the same extent and under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans or REO Properties for which it is responsible.
SECTION 3.23 Representations and Warranties of Master Servicer
and Special Servicer.
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(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Paying Agent, the Depositor and the Special
Servicer, as of the Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States of America, and the Master
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
articles of association or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or by which it is bound.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable receivership, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer, calculated on a consolidated basis.
(vii) Each officer, director, employee, consultant or advisor of the
Master Servicer with responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the case of the
initial Master Servicer, the consolidated net worth thereof and of its
direct or indirect parent), determined in accordance with generally
accepted accounting principles, is not less than $15,000,000.
(ix) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement has been obtained and is effective.
(x) The Master Servicer possesses all insurance required pursuant to
Section 3.07(c) of this Agreement.
(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Paying Agent, the Depositor and the Master
Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized under the
laws of the State of California, validly existing and the Special Servicer
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgement, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or, in the Special Servicer's good faith
and reasonable judgment, is likely to materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) The Special Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof.
(viii) No consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the Special Servicer with this Agreement, or the
consummation by the Special Servicer of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings, or notices as have been obtained
or made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Special Servicer under this
Agreement.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Section 3.23(a) (with respect to the Master
Servicer) and Section 3.23(b) (with respect to the Special Servicer),
respectively, shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty.
---------------------------------------------------
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Section 3.22(a) and the second
paragraph of Section 3.22(d) in all material respects.
SECTION 3.25 Designation of Controlling Class Representative.
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(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Paying Agent of
written requests for the selection of a Controlling Class Representative from
the Holders (or, in the case of Book-Entry Certificates, the Certificate Owners)
of Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Paying Agent
that the Controlling Class has changed, the Paying Agent shall promptly notify
the Depositor and the Holders (and, in the case of Book-Entry Certificates, to
the extent actually known to a Responsible Officer of the Paying Agent or
identified thereto by the Depository or the Depository Participants, the
Certificate Owners) of the Controlling Class that they may select a Controlling
Class Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Paying Agent. No appointment of
any Person as a Controlling Class Representative shall be effective until such
Person provides the Paying Agent with written confirmation of its acceptance of
such appointment, an address and telecopy number for the delivery of notices and
other correspondence and a list of officers or employees of such Person with
whom the parties to this Agreement may deal (including their names, titles, work
addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Paying Agent shall deliver to the requesting party the identity of the
Controlling Class Representative and a list of each Holder (or, in the case of
Book-Entry Certificates, to the extent actually known to a Responsible Officer
of the Paying Agent or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the Paying
Agent shall be entitled to conclusively rely on information provided to it by
the Depository, and the Master Servicer and the Special Servicer shall be
entitled to rely on such information provided by the Paying Agent with respect
to any obligation or right hereunder that the Master Servicer and the Special
Servicer may have to deliver information or otherwise communicate with the
Controlling Class Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Controlling Class. In addition to the foregoing,
within two (2) Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Paying Agent shall notify the other
parties to this Agreement of such event. The expenses incurred by the Paying
Agent in connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of the
Trust Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Paying Agent, the Trustee and to each
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class. The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled to remove any
existing Controlling Class Representative by giving written notice to the Paying
Agent and to such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Paying Agent, the Trustee
and each other Holder (or, in the case of Book-Entry Certificates, Certificate
Owner) of the Controlling Class, in writing, of the resignation or removal of
such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Mortgagor with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Paying Agent, the Master Servicer and the Special Servicer, whereupon (if the
Special Servicer or the Trust Fund are also named parties to the same action
and, in the reasonable judgment of the Special Servicer, (i) the Controlling
Class Representative had acted in good faith, without negligence or willful
misfeasance with regard to the particular matter, and (ii) there is no potential
for the Special Servicer or the Trust Fund to be an adverse party in such action
as regards the Controlling Class Representative) the Special Servicer on behalf
of the Trust Fund shall, subject to Section 6.03, assume the defense of any such
claim against the Controlling Class Representative. This provision shall survive
the termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
(f) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained herein shall also apply to each Companion Holder
with respect information relating to the related AB Mortgage Loan (other than
with respect to information related to the calculation of the Option Price
related to the related AB Mortgage Loan).
SECTION 3.26 Servicing and Administration of the AB Mortgage
Loans and the Companion Loans.
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(a) Each Companion Loan shall be serviced and administered hereunder
as if it was a Mortgage Loan for so long as the related AB Mortgage Loan or REO
Loan is an asset of the Trust Fund, including for purposes of: (i) the
application of the Servicing Standard, as if the holder of such Companion Loan
was the Holder of a separate Class of Certificates backed solely by such
Companion Loan; (ii) determining whether a Servicing Transfer Event has occurred
with respect to such Companion Loan; and (iii) the payment of the Special
Servicing Fee and other forms of compensation to the Special Servicer; provided,
however, notwithstanding anything herein to the contrary: (i) no party hereto
shall make any P&I Advances with respect to such Companion Loan or otherwise for
the benefit of the holder thereof; (ii) if a Servicing Transfer Event were to
occur with respect to such Companion Loan, then the Companion Loan and related
AB Mortgage Loan shall be treated collectively as a single Specially Serviced
Mortgage Loan at the request of the Controlling Class Representative (so long as
the Controlling Class Representative is not an affiliate of the related Mortgage
Loan Seller), including for purposes of application of the Servicing Standard,
until all Servicing Transfer Events with respect to the Companion Loan have
ceased to exist; (iii) if a Servicing Transfer Event were to occur with respect
to an AB Mortgage Loan, then such AB Mortgage Loan and related Companion Loan
shall be treated collectively as a single Specially Serviced Mortgage Loan,
including for purposes of application of the Servicing Standard, until both such
loans have become Corrected Mortgage Loans; (iv) all amounts received on or with
respect to such Companion Loan and the corresponding AB Mortgage Loan or on or
with respect to any related REO Property shall be allocable between the holder
of such Companion Loan and the Trust, as holder of the corresponding AB Mortgage
Loan, in accordance with the terms of the related CLF Intercreditor Agreement,
with any amounts so allocable to the corresponding AB Mortgage Loan to be
deposited in the Certificate Account for application as contemplated by Section
3.05 (or, if received on any related REO Property, in the REO Account for
application as contemplated by Section 3.16) and any amounts allocable to such
Companion Loan to be distributed by the Companion Paying Agent to the holder of
such Companion Loan in accordance with Section 3.26(c) below, in each case
within one Business Day of the receipt thereof or, in the case of payments to
the holder of such Companion Loan, within such longer period as is permitted by
the related CLF Intercreditor Agreement (except that any amounts allocable under
such CLF Intercreditor Agreement for purposes of paying or reimbursing any party
hereto or the Trust for any Advances, Advance Interest, servicing or special
servicing compensation or Additional Trust Fund Expenses related to such
Companion Loan, the corresponding AB Mortgage Loan and/or any related REO
Property, including any such items which were previously paid out of amounts
allocable to the corresponding AB Mortgage Loan, shall be deemed to have been
received and allocable to the corresponding AB Mortgage Loan and shall be
deposited into the Certificate Account for application as contemplated by
Section 3.05 (or, if received on any related REO Property, in the REO Account
for application as contemplated by Section 3.16)); (v) no Master Servicing Fees
will be payable with respect to such Companion Loan; (vi) no Trustee Fees or
Paying Agent Fees will be payable with respect to matters affecting such
Companion Loan; (vii) except to the extent that the corresponding AB Mortgage
Loan is affected or it is otherwise required by the related loan documents, this
Agreement or CLF Intercreditor Agreement, no confirmation will be required of
the Rating Agencies with respect to such Companion Loan; (viii) all statements,
reports and written or electronic information forwarded by any party hereto to
the Controlling Class Representative shall also be contemporaneously forwarded
to the holder of such Companion Loan (but only to the extent that such
statements, reports and other information directly relate to such Companion Loan
and the exclusive of any information, statements or reports related to the
calculation of the Option Price for the AB Mortgage Loan); (ix) the Master
Servicer shall, to the extent permitted by the related CLF Intercreditor
Agreement, make claims for reimbursement from the holder of such Companion Loan
in connection with related Advances and Advance Interest and other related
expenses so as to minimize the total amount of the withdrawals on the
Certificate Account for such items; and (x) in no event shall such Companion
Loan be taken into account for purposes of determining distributions on the
actual Certificates. Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or any
related REO Property is part of the Trust Fund or provided that any amounts
payable by the holder of such Companion Loan to or for the benefit of the Trust
or any party hereto in accordance with the related CLF Intercreditor Agreement
after such period remain due and owing.
(b) The servicing and administration of each AB Mortgage Loan and
the corresponding Companion Loan shall be subject to and shall be consistent
with the terms and conditions of the CLF Intercreditor Agreement and the
Servicing Standard notwithstanding the terms hereof so long as such terms and
conditions do not conflict with the REMIC Provisions. The Trustee, the Master
Servicer and the Special Servicer each acknowledge that each AB Mortgage Loan
and its related Companion Loan shall be serviced and administered pursuant to
the related CLF Intercreditor Agreement. Except with respect to the exclusion of
information related to the calculation of the Option Price of an AB Mortgage
Loan, in the event of conflict between the CLF Intercreditor Agreement and this
Agreement, the CLF Intercreditor Agreement shall control.
(c) Payments of amounts allocable to a Companion Loan shall be
payable to the holder of such Companion Loan in accordance with the written
instructions of such holder delivered to the Companion Paying Agent no later
than five (5) Business Days prior to the related Distribution Date.
(d) It is hereby acknowledged and agreed that the holder of each
Companion Loan may purchase the corresponding AB Mortgage Loan out of the Trust
Fund at the price and in accordance with the terms and conditions specified in
Section 6 of the related CLF Intercreditor Agreement. The price paid in
connection with such purchase shall be deposited into the Certificate Account,
and the Trustee, upon a request for release and receipt of an Officer's
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the holder of such Companion Loan
the related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the holder of such Companion Loan the
ownership of the corresponding AB Mortgage Loan. In connection with such
purchase, the Master Servicer and the Special Servicer shall each deliver to the
holder of such Companion Loan the respective portion of the related Servicing
File held by it.
(e) Transfers of each Companion Loan shall be governed by the
related CLF Intercreditor Agreement. Neither the Trustee, the Master Servicer
nor the Trust Fund shall acquire a Companion Loan.
(f) For the purposes of this Agreement, receipt by the Master
Servicer or the Special Servicer of any amounts relating to an AB Mortgage Loan
or the Trust's share of any amounts relating to the underlying Mortgaged
Property shall be deemed to be amounts received on behalf of the Trust.
(g) The Master Servicer provides to each Companion Holder any
reports or notices required to be delivered to such Companion Holder pursuant to
the related CLF Intercreditor Agreement. Any report prepared by the Master
Servicer pursuant to the terms of any CLF Intercreditor Agreement shall also be
delivered to the Controlling Class Representative insofar as such report relates
to the related Companion Loan.
SECTION 3.27 Abbey Intercreditor Agreement
-----------------------------
The Master Servicer and Special Servicer shall act as Mortgage
Lender (as defined in the Abbey Intercreditor Agreement) with respect to the
Mortgage Loans referred to in the Abbey Intercreditor Agreement and shall
service such Mortgage Loans in accordance with the Abbey Intercreditor Agreement
as long as such terms and conditions do not conflict with the REMIC Provisions
and this Agreement. In the event of a conflict between this Agreement and the
Abbey Intercreditor Agreement, the Abbey Intercreditor Agreement will control.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
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(a) On each Distribution Date the Paying Agent shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account, after payment of amounts payable from the Distribution Account in
accordance with Section 3.05(b)(ii) through (vii) and deemed distributions from
REMIC I pursuant to Section 4.01(h), for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class A-1
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-1 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal, pro
rata, to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of
any portion thereof distributed on such Distribution Date to the Holders
of the Class A-1 Certificates pursuant to clause (ii) above);
(iv) to distributions to the Holders of the Class A-1 Certificates
and the Class A-2 Certificates, pro rata in accordance with, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional
Trust Fund Expenses, if any, previously allocated to each such Class of
Certificates and not previously reimbursed;
(v) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(vi) after the Class Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B Certificates, in
an amount (not to exceed the Class Principal Balance of the Class B
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a)).
(vii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
B Certificates and not previously reimbursed;
(viii) to distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(ix) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class C Certificates, in an amount (not to exceed the Class Principal
Balance of the Class C Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(x) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
C Certificates and not previously reimbursed;
(xi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xii) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class D Certificates, in an amount (not to exceed the Class Principal
Balance of the Class D Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xiii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
D Certificates and not previously reimbursed;
(xiv) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xv) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class E Certificates, in an amount (not to exceed the Class Principal
Balance of the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xvi) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
E Certificates and not previously reimbursed;
(xvii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xviii) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class F Certificates, in an amount (not to exceed the
Class Principal Balance of the Class F Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(xix) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
F Certificates and not previously reimbursed;
(xx) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxi) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class G Certificates, in an amount (not to exceed the Class Principal
Balance of the Class G Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
G Certificates and not previously reimbursed;
(xxiii) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiv) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class H Certificates, in an amount (not to exceed the Class Principal
Balance of the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxv) to distributions to the Holders of the Class H Certificates in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxvi) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class J Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxvii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, in an amount (not to exceed the
Class Principal Balance of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(xxviii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class J Certificates and not previously reimbursed;
(xxix) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class K Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxx) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, in an amount (not to exceed the Class Principal
Balance of the Class K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxxi) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
K Certificates and not previously reimbursed;
(xxxii) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class L Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxiii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class L Certificates, in an amount (not to exceed the
Class Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(xxxiv) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
L Certificates and not previously reimbursed;
(xxxv) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class M Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxvi) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class M Certificates, in an amount (not to exceed the
Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(xxxvii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class M Certificates and not previously reimbursed;
(xxxviii) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class N Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxix) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class N Certificates, in an amount (not to exceed the
Class Principal Balance of the Class N Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(xl) to distributions to the Holders of the Class N Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
N Certificates and not previously reimbursed;
(xli) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class O Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xlii) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class O Certificates, in an amount (not to exceed the Class Principal
Balance of the Class O Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xliii) to distributions to the Holders of the Class O Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
O Certificates and not previously reimbursed;
(xliv) to make distributions to the Holders of the Class R-II
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(a), over (B)
the aggregate distributions made in respect of the Regular Certificates on
such Distribution Date pursuant to clauses (i) through (xliii) above;
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates has been reduced to zero,
the payments of principal to be made as contemplated by clauses (ii) and (iii)
above with respect to the Class A Certificates will be made to the Holders of
the respective Classes of such Class A Certificates up to an amount equal to,
and pro rata as among such Classes in accordance with, the respective then
outstanding Class Principal Balances of such Classes of Certificates and without
regard to the Principal Distribution Amount for such Distribution Date.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
All distributions of interest made in respect of the Class IO-I and
Class IO-II Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class IO-I
and Class IO-II Strip Rate, as applicable, of such Component multiplied by its
Component Notional Amount, less an allocable portion of any Prepayment Interest
Shortfall, together with any amounts thereof remaining unpaid from previous
Distribution Dates.
(b) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account any amounts that represent Prepayment Premiums and/or
Yield Maintenance Charges actually collected on the Mortgage Loans and any REO
Loans during the related Collection Period and shall be deemed to distribute
such Prepayment Premiums and/or Yield Maintenance Charges from REMIC I to REMIC
II in respect of REMIC I Regular Interest LA-1 (whether or not such Class has
received all distributions of interest and principal to which it is entitled),
and then shall distribute each such Prepayment Premium and/or Yield Maintenance
Charge, as additional yield, as follows:
(1) First, to the Holders of the respective Classes of Regular
Certificates (other than any Excluded Class thereof) entitled to
distributions of principal pursuant to Section 4.01(a) on such
Distribution Date, up to an amount equal to, and pro rata based on,
the Additional Yield Amounts for each such Class of Certificates for
such Distribution Date; and
(2) Second, to the Holders of the Class IO-I Certificates, to
the extent of any remaining portion of such Yield Maintenance
Charges.
On each Distribution Date, the Paying Agent shall withdraw from the
Additional Interest Account any amounts that represent Additional Interest
actually collected during the related Collection Period on the ARD Loans and any
related REO Loans and shall distribute such amounts to the Holders of the Class
Z Certificates pro rata in accordance with their respective Percentage Interests
of such Class.
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Sequential Pay Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate, but taking into account possible future
distributions of Additional Interest) will be made in a like manner, but only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto, which reimbursement is to occur after
the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the Paying
Agent was subsequently notified in writing. If such check is returned to the
Paying Agent, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Paying Agent has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Paying Agent shall, subject to applicable law,
distribute the unclaimed funds to the Holders of the Class R-II Certificates.
(d) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under a Letter of Representations
among the Depositor, the Trustee and the Initial Depository dated as of the
Closing Date.
(e) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Paying Agent receives written notification of or expects that the final
distribution with respect to any Class of Certificates (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Class of Certificates) will be
made on the next Distribution Date, the Paying Agent shall, no later than five
days after the related Determination Date, mail to each Holder of record on such
date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
office of the Certificate Registrar or at such other location therein
specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Paying Agent shall, subject to applicable law,
distribute to the Holders of the Class R-II Certificates all unclaimed funds and
other assets which remain subject thereto.
(g) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders.
(h) All distributions made in respect of any Class of Sequential Pay
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from REMIC I to REMIC II in
respect of its Corresponding REMIC I Regular Interest set forth in the
Preliminary Statement hereto; provided, however, that distributions of principal
with respect to the Class A-2 Certificates shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC Regular Interest LA-2-1
until its REMIC Principal Balance is reduced to zero and then to REMIC I Regular
Interest LA-2-2. All distributions made in respect of the Class IO-I and Class
IO-II Certificates on each Distribution Date pursuant to Section 4.01(a) or
Section 9.01, and allocable to any particular Component of such Class of
Certificates in accordance with the last paragraph of Section 4.01(a), shall be
deemed to have first been distributed from REMIC I to REMIC II in respect of
such Component's Corresponding REMIC I Regular Interest. In each case, if such
distribution on any such Class of Regular Certificates was a distribution of
interest or principal or in reimbursement of previously allocated Realized
Losses and Additional Trust Fund Expenses in respect of such Class of Regular
Certificates, then the corresponding distribution deemed to be made on a REMIC I
Regular Interest pursuant to the preceding two sentences shall be deemed to also
be a distribution of interest or principal or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses, as the case may
be, in respect of such REMIC I Regular Interest; provided, however, with respect
to Realized Losses and Additional Trust Fund Expenses allocated to the Class A-2
Certificates, such corresponding distribution shall be deemed to be a
distribution with respect to REMIC I Regular Interest L-A-2-1 and REMIC Regular
Interest L-A-2-2 allocated pro rata based upon their respective REMIC I
Principal Balances. Any amounts remaining in the Distribution Account in respect
of REMIC I after the deemed distributions in respect of the REMIC I Regular
Interests shall (except as otherwise provided in Section 9.01) be distributed by
the Paying Agent to the Holders of the Class R-I Certificates.
(i) On each Distribution Date, the Companion Paying Agent (based
upon a statement of the Master Servicer to be delivered to the Paying Agent that
specifies the amount required to be deposited in the Companion Distribution
Account and any amounts payable to the Master Servicer from the Companion
Distribution Account pursuant to this Section 4.01(i)) shall make withdrawals
and payments from the Companion Distribution Account for the related Companion
Loans in the following order of priority:
(i) to pay the Trustee and the Paying Agent, as applicable, or any
of their respective directors, officers, employees and agents, as the case
may be, any amounts payable or reimbursable to any such Person pursuant to
Section 8.05, to the extent any such amounts relate solely to a Loan Pair;
(ii) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent as contemplated by Sections 9.02(a)(i) and
10.01(h), to the extent any such costs relate to a Loan Pair;
(iii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iv) on each Distribution Date, to pay all amounts remaining in the
Companion Distribution Account to the Companion Holder; and
(v) to clear and terminate the Companion Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
All distributions from a Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first-class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
To the extent amounts are payable to or in respect of the Trust Fund
pursuant to Section 4.01(i)(i) or (ii), the Companion Distribution Account shall
be considered an "outside reserve fund" within the meaning of the REMIC
Provisions, beneficially owned by the Companion Holder for federal income tax
purposes, who shall be taxable on all reinvestment income thereon, and who shall
be deemed to have received any amounts reimbursed from the Trust Fund to the
Companion Distribution Account.
(j) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of each Class of Sequential Pay Certificates (in order
of alphabetical Class designation) up to an amount equal to all Realized Losses
and Additional Trust Fund Expenses, if any, previously deemed allocated to them
and unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account pursuant
to the preceding sentence shall first be deemed to have been distributed to the
Corresponding REMIC I Regular Interest in reimbursement of Realized Losses and
Additional Trust Fund Expenses previously allocated thereto. Amounts paid from
the Gain-on-Sale Reserve Account will not reduce the Certificate Principal
Balances of the Classes receiving such distributions. Any amounts remaining in
the Gain-on-Sale Reserve Account after such distributions shall be applied to
offset future Realized Losses and Additional Trust Fund Expenses and upon
termination of the Trust Fund, any amounts remaining in the Gain-on-Sale Reserve
Account shall be distributed to the Class R-I Certificateholders.
SECTION 4.02 Statements to Certificateholders; CMSA Loan
Periodic Update File.
-------------------------------------------
(a) On each Distribution Date, the Paying Agent shall make available
or forward by mail (or by electronic transmission acceptable to the recipient)
to each Certificateholder, each initial Certificate Owner and (upon written
request made to the Paying Agent) each subsequent Certificate Owner (as
identified to the reasonable satisfaction of the Paying Agent), the Depositor,
the Master Servicer, the Special Servicer, the Companion Holder, the
Underwriters and each Rating Agency, a statement (a "Distribution Date
Statement"), as to the distributions made on such Distribution Date, based on
information provided to it by the Master Servicer and the Special Servicer, in
accordance with the Commercial Mortgage Securities Association (or any successor
organization reasonably acceptable to the Master Servicer and the Paying Agent)
guidelines, setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates in reduction of the Class
Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates allocable to Distributable
Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates allocable to Prepayment
Premiums and/or Yield Maintenance Charges;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in respect of
such Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii), and the
aggregate amount of xxxxxxxxxxxx X&X Advances that had been outstanding at
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer or the
Trustee in respect of such xxxxxxxxxxxx X&X Advances in accordance with
Section 4.03(d) as of the close of business on the related Determination
Date, (b) the aggregate amount of Servicing Advances as of the close of
business on the related Determination Date and (c) the aggregate amount of
all Nonrecoverable Advances as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related Determination
Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent
more than 89 days, (D) as to which foreclosure proceedings have been
commenced, and (E) to the actual knowledge of the Master Servicer or
Special Servicer in bankruptcy proceedings;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, and (C) a brief
description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the aggregate of all
Liquidation Proceeds and other amounts received in connection with such
Liquidation Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Realized
Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Certificates for such
Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of Regular Certificates
for such Distribution Date;
(xvii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
received during the related Collection Period, the loan number for the
related Mortgage Loan and the amount of such prepayment or other
collection of principal);
(xviii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xix) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that were allocated on such Distribution Date;
(xx) the Class Principal Balance of each Class of Regular
Certificates (other than the Class IO Certificates) and the Component
Notional Amount of each Component outstanding immediately before and
immediately after such Distribution Date, separately identifying any
reduction therein due to the allocation of Realized Losses and Additional
Trust Fund Expenses on such Distribution Date;
(xxi) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee during the related Collection Period in
accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer and the Trustee during the related Collection
Period in accordance with Section 3.03(d);
(xxiv) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer during the related Collection Period;
and
(xxv) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination Date;
(xxvi) the original and then current credit support levels for each
Class of Regular Certificates;
(xxvii) the original and then current ratings for each Class of
Regular Certificates;
(xxviii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period; and
(xxix) the amounts, if any, actually distributed with respect to the
Class R-I Certificates, Class R-II Certificates or Class Z Certificates on
such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Paying Agent as a basis
for information to be furnished pursuant to clauses (x) through (xiii), and
(xxiv) above, insofar as the underlying information is solely within the control
of the Special Servicer, the Paying Agent and the Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer.
The Paying Agent may rely on and shall not be responsible absent
manifest error for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
The Paying Agent shall make available or shall cause to be delivered
on each Distribution Date either electronically or by first class mail to each
Certificateholder, the Depositor, the Underwriters, each Rating Agency, the
Special Servicer and any other Person designated in writing by the Depositor (by
hard copy, on diskette or via such other electronic medium as is mutually
acceptable to the Paying Agent and the recipient) a copy of the following nine
reports or in the case of reports to Persons designated in writing by the
Depositor, any of the following nine reports delivered to it by the Master
Servicer pursuant to Section 3.12(c): (i) the Delinquent Loan Status Report,
(ii) the Historical Liquidation Report, (iii) the Historical Loan Modification
Report, (iv) the REO Status Report, (v) the Watch List, (vi) a Comparative
Financial Status Report, (vii) an Operating Statement Analysis, (viii) an NOI
Adjustment Worksheet and (ix) an Interim Delinquent Loan Status Report. The
Paying Agent shall make available or shall cause to be delivered on each
Distribution Date by first class mail (or by electronic transmission acceptable
to the recipient) to each Certificateholder, each Certificate Owner, the
Underwriters, the Depositor, each Rating Agency and each other Person that
received a Distribution Date Statement on such Distribution Date a hard copy (or
a copy in an electronic medium acceptable to the recipient) of the CMSA Loan
Periodic Update File, the CMSA Property File, the CMSA Bond File, and the CMSA
Collateral Summary File containing information regarding each Mortgaged Property
most recently received from the Master Servicer. Absent manifest error, none of
the Master Servicer or the Special Servicer shall be responsible for the
accuracy or completeness of any information supplied to it by a borrower or
third party that is included in any reports, statements, materials or
information prepared or provided by the Master Servicer or the Special Servicer,
as applicable. The Paying Agent shall not be responsible absent manifest error
for the accuracy or completeness of any information supplied to it for delivery
pursuant to this Section 4.02(a). Neither the Paying Agent, the Master Servicer
nor the Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor or third party.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall, upon request, send to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to clauses (i), (ii), (iii) and (iv) of the description of
"Distribution Date Statement" above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust Fund. Such requirement shall be deemed to be satisfied to the extent
such information is provided pursuant to applicable requirements of the Code
from time to time in force.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Paying Agent shall mail or cause the mailing of, or
provide electronically or cause the provision electronically of, such
statements, reports and/or other written information to such Certificate Owner
upon the request of such Certificate Owner made in writing to LaSalle Bank
National Association, 000 X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Asset-Backed Securities Trust Services Group-First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass Through
Certificates, Series 2002-C1 (accompanied by current verification of such
Certificate Owner's ownership interest). Such portion of such information as may
be agreed upon by the Depositor and the Paying Agent shall be furnished to any
such Person via overnight courier delivery or telecopy from the Paying Agent;
provided that the cost of such overnight courier delivery or telecopy shall be
an expense of the party requesting such information.
The Paying Agent shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Paying Agent or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Paying Agent, Master Servicer or the Special Servicer to disseminate information
for such reason shall not be a breach hereof.
(b) Not later than 12:00 p.m. New York City time on the second
Business Day preceding each Distribution Date the Master Servicer shall furnish
to the Paying Agent, the Depositor, the Special Servicer and the Underwriters,
by electronic transmission (or in such other form to which the Paying Agent or
the Depositor, as the case may be, and the Master Servicer may agree), with a
hard copy of such transmitted information to follow promptly, an accurate and
complete CMSA Loan Periodic Update File providing the required information for
the Mortgage Loans as of such Determination Date. The Depositor shall provide
the information necessary for the CMSA Loan Setup File on the Closing Date. Not
later than 12:00 p.m. New York City time on the second Business Day preceding
each Distribution Date, the Master Servicer shall deliver to the Paying Agent
notice of the Discount Rate applicable to each Principal Prepayment received in
the related Collection Period.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Paying Agent may conclusively rely on reports
provided to it by the Master Servicer, and the Paying Agent shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information to be furnished by the Master
Servicer to the Paying Agent pursuant to this Section 4.02(b), insofar as such
information is solely within the control of the Special Servicer, the Master
Servicer shall have no obligation to provide such information until it has
received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CMSA Loan Periodic Update File caused
by the Special Servicer's failure to timely provide any report required under
this Agreement and may, absent manifest error, conclusively rely on the reports
to be provided by the Special Servicer.
SECTION 4.03 P&I Advances.
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(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall (i) apply amounts in the Certificate Account
received after the end of the related Collection Period or otherwise held for
future distribution to Certificateholders in subsequent months in discharge of
its obligation to make P&I Advances or (ii) subject to Section 4.03(c) below,
remit from its own funds to the Paying Agent for deposit into the Distribution
Account an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date. The Master Servicer may also
make P&I Advances in the form of any combination of clauses (i) and (ii) above
aggregating the total amount of P&I Advances to be made. Any amounts held in the
Certificate Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Master Servicer's records and replaced
by the Master Servicer by deposit in the Certificate Account on or before the
next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and interest
in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York
City time, on any P&I Advance Date, the Master Servicer shall not have made any
P&I Advance required to be made on such date pursuant to this Section 4.03(a)
(and shall not have delivered to the Trustee and the Paying Agent the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Paying Agent shall provide notice
of such failure to a Servicing Officer of the Master Servicer and the Trustee by
facsimile transmission sent to telecopy (000) 000-0000 and (000) 000-0000,
respectively, (or such alternative numbers provided by the Master Servicer and
the Trustee to the Paying Agent in writing) and by telephone at telephone (704)
000-0000 and (000) 000-0000, respectively, (or such alternative numbers provided
by the Master Servicer and the Trustee to the Paying Agent in writing) as soon
as possible, but in any event before 4:00 p.m., New York City time, on such P&I
Advance Date. If the Paying Agent does not receive the full amount of such P&I
Advances by 10:00 a.m., New York City time, on the related Distribution Date,
then, subject to Section 4.03(c), (i) the Paying Agent shall notify the Trustee
and the Trustee shall, no later than 11:00 a.m., New York City time, on such
related Distribution Date make the portion of such P&I Advances that was
required to be, but was not, made by the Master Servicer on such P&I Advance
Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee in respect of any Distribution Date shall, subject to
Section 4.03(c) below, equal the aggregate of all Periodic Payments (other than
Balloon Payments) and any Assumed Scheduled Payments, net of related Servicing
Fees due or deemed due, as the case may be, in respect of the Mortgage Loans
(including, without limitation, Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans on their respective Due Dates
during the related Collection Period, in each case to the extent such amount was
not paid by or on behalf of the related Mortgagor or otherwise collected
(including as net income from REO Properties) as of the close of business on the
related Determination Date; provided, that, (x) if the Periodic Payment on any
Mortgage Loan has been reduced in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
or if the final maturity on any Mortgage Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, and the Periodic Payment due and owing during the
extension period is less than the related Assumed Scheduled Payment, then the
Master Servicer or the Trustee shall, as to such Mortgage Loan only, advance
only the amount of the Periodic Payment due and owing after taking into account
such reduction (net of related Servicing Fees) in the event of subsequent
delinquencies thereon; and (y) if it is determined that an Appraisal Reduction
Amount exists with respect to any Required Appraisal Loan, then, with respect to
the Distribution Date immediately following the date of such determination and
with respect to each subsequent Distribution Date for so long as such Appraisal
Reduction Amount exists with respect to such Required Appraisal Loan, the Master
Servicer or the Trustee will be required in the event of subsequent
delinquencies to advance in respect of such Mortgage Loan only an amount equal
to the sum of (A) the amount of the interest portion of the P&I Advance that
would otherwise be required without regard to this clause (y), minus the product
of (1) such Appraisal Reduction Amount and (2) the per annum Pass-Through Rate
(i.e., for any month, one-twelfth of the Pass-Through Rate) applicable to the
Class of Certificates to which such Appraisal Reduction Amount is allocated
pursuant to Section 4.04(d) and (B) the amount of the principal portion of the
P&I Advance that would otherwise be required without regard to this clause (y).
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers' Certificate delivered to the Trustee and the Depositor
on or before the related P&I Advance Date, setting forth the basis for such
determination, together with any other information, including Appraisals (the
cost of which may be paid out of the Certificate Account pursuant to Section
3.05(a)) (or, if no such Appraisal has been performed pursuant to this Section
4.03(c), a copy of an Appraisal of the related Mortgaged Property performed
within the twelve months preceding such determination), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties, engineers' reports, environmental surveys and any
similar reports that the Master Servicer may have obtained consistent with the
Servicing Standard and at the expense of the Trust Fund, that support such
determination by the Master Servicer. On the fourth Business Day before each
Distribution Date, the Special Servicer shall report to the Master Servicer the
Special Servicer's determination as to whether each P&I Advance made with
respect to any previous Distribution Date or required to be made with respect to
such Distribution Date with respect to any Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable P&I Advance. The Master Servicer shall be entitled
to conclusively rely on such determination. The Trustee shall be entitled to
rely, conclusively, on any determination by the Master Servicer that a P&I
Advance, if made, would be a Nonrecoverable Advance (and with respect to a P&I
Advance, the Trustee, as applicable, shall rely on the Master Servicer's
determination that the P&I Advance would be a Nonrecoverable Advance if the
Trustee determines that it does not have sufficient time to make such
determination); provided, however, that if the Master Servicer has failed to
make a P&I Advance for reasons other than a determination by the Master Servicer
that such P&I Advance would be Nonrecoverable Advance, the Trustee shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee, in good faith, makes a determination prior to the times specified in
Section 4.03(a) that such P&I Advance would be a Nonrecoverable Advance. The
Trustee in determining whether or not a P&I Advance previously made is, or a
proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be
subject to the standards applicable to the Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), subject to the next sentence, the Master Servicer shall be entitled to
pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate (or, with
respect to the AB Mortgage Loans and related Companion Loans, the rate provided
in the CLF Intercreditor Agreement) in effect from time to time, compounded
annually, accrued on the amount of such P&I Advance (to the extent made with its
own funds) from the date made to but not including the date of reimbursement
such interest to be payable, subject to the terms of a CLF Intercreditor
Agreement with respect to the related Loan Pair, first out of late payment
charges and Penalty Interest received on the related Mortgage Loan or REO
Property and then from general collections on the Mortgage Loans then on deposit
in the Certificate Account; provided, however, that no interest shall accrue on
any P&I Advance made with respect to a Mortgage Loan if the related Periodic
Payment is received prior to the due date of such Mortgage Loan or the
expiration of any applicable grace period. The Master Servicer shall reimburse
itself or the Trustee, as applicable, for any outstanding P&I Advance made
thereby as soon as practicable after funds available for such purpose have been
received by the Master Servicer, and in no event shall interest accrue in
accordance with this Section 4.03(d) on any P&I Advance as to which the
corresponding Late Collection was received by the Master Servicer on or prior to
the related P&I Advance Date.
(e) In no event shall the Master Servicer or the Trustee make a P&I
Advance with respect to any Companion Loan.
SECTION 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses; Allocation of Certificate Deferred
Interest; Allocation of Appraisal Reduction Amounts.
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(a) On each Distribution Date, following all distributions to be
made on such date pursuant to Section 4.01, the Paying Agent shall allocate to
the respective Classes of Sequential Pay Certificates as follows the aggregate
of all Realized Losses and Additional Trust Fund Expenses that were incurred at
any time following the Cut-off Date through the end of the related Collection
Period and in any event that were not offset by late payment charges or Penalty
Interest or previously allocated pursuant to this Section 4.04(a) on any prior
Distribution Date, but only to the extent that (i) the aggregate Certificate
Principal Balance of the Sequential Pay Certificates as of such Distribution
Date (after taking into account all of the distributions made on such
Distribution Date pursuant to Section 4.01), exceeds (ii) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date: first, to the Class O Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero, second to
the Class N Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; third, to the Class M Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; fourth, to
the Class L Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; fifth, to the Class K Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; sixth, to
the Class J Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; seventh, to the Class H Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; eighth, to
the Class G Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; ninth, to the Class F Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; tenth, to
the Class E Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; eleventh, to the Class D Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; twelfth, to
the Class C Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; thirteenth, to the Class B Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; and
fourteenth pro rata (based on remaining Class Principal Balances) to the Class
A-1 Certificates and the Class A-2 Certificates, until the Class Principal
Balances thereof are reduced to zero. Any allocation of Realized Losses and
Additional Trust Fund Expenses to a Class of Regular Certificates shall be made
by reducing the Class Principal Balance thereof by the amount so allocated. All
Realized Losses and Additional Trust Fund Expenses, if any, allocated to a Class
of Regular Certificates shall be allocated among the respective Certificates of
such Class in proportion to the Percentage Interests evidenced thereby. All
Realized Losses and Additional Trust Fund Expenses, if any, that have not been
allocated to the Regular Certificates as of the Distribution Date on which the
aggregate Certificate Principal Balance of such Regular Certificates has been
reduced to zero, shall be deemed allocated to the Residual Certificates.
(b) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(h),
the REMIC I Principal Balance of Corresponding REMIC I Regular Interests (after
taking account of such deemed distributions) shall be reduced as a result of
Realized Losses and Additional Trust Fund Expenses to equal the Class Principal
Balance of the Class of Corresponding Certificates that will be outstanding
immediately following such Distribution Date; provided, that with respect to the
application of reductions of the aggregate REMIC I Principal Balances of REMIC I
Regular Interests LA-2-1 and LA-2-2 to the Class Principal Balance of the Class
A-2 Certificates that will be outstanding immediately following such
Distribution Date, each such reduction shall be allocated pro rata between such
REMIC I Regular Interests based upon their respective REMIC I Principal
Balances.
(c) On any Distribution Date, the amount of any Mortgage Deferred
Interest will be allocated as Certificate Deferred Interest to each outstanding
Class of Sequential Pay Certificates in reverse alphabetical order (except with
respect to the Class A-1 and Class A-2 Certificates, which amounts shall be
applied pro rata (based on remaining Class Principal Balances) to such
Certificates), in each case up to the respective Accrued Certificate Interest
for each such Class of Certificates for such Distribution Date. On each such
Distribution Date, the Certificate Principal Balance of each Class of
Certificates to which Certificate Deferred Interest has been allocated will be
increased by the amount of Certificate Deferred Interest allocated to such
Class. The amount of Certificate Deferred Interest allocated to any Class of
Sequential Pay Certificates will be allocated to, and will increase the REMIC I
Principal Balances of the Corresponding REMIC I Regular Interests; provided,
however, allocations to REMIC I Regular Interests LA-2-1 and LA-2-2 shall be
applied pro rata based upon their respective REMIC I Principal Balances, in each
case up to the Pass-Through Rate of the Corresponding Certificates.
(d) Any Appraisal Reduction Amounts will be allocated only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, as follows: to the Class Principal Balance of the Class O, Class
N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class
D, Class C and Class B Certificates, in that order, up to the amount of their
respective Class Principal Balances. On any Distribution Date, an Appraisal
Reduction Amount that otherwise would be allocated to a Class of Certificates
will be allocated to the next most subordinate Class to the extent that the
Class Principal Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction Amount into account) is less than the
Appraisal Reduction Amount for the Distribution Date. The Master Servicer shall
report to the Trustee on or before each Determination Date all Appraisal
Reduction Amounts and the Trustee shall report to the Master Servicer no later
than 10:00 a.m. on the related P&I Advance Date the Pass-Through Rates necessary
to calculate the allocation required by this Section 4.04(d).
SECTION 4.05 Calculations.
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The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Paying Agent shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Paying Agent shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Paying Agent of such
amounts shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
SECTION 4.06 Use of Agents.
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The Master Servicer, the Special Servicer, the Paying Agent or the
Trustee may at its own expense utilize agents or attorneys-in-fact in performing
any of its obligations under this Article IV (except the obligation to make P&I
Advances), but no such utilization shall relieve the Master Servicer, the Paying
Agent or the Trustee from any of such obligations or liabilities, and the Master
Servicer, the Paying Agent or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers-of-attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to Section 2.03(b) and
3.01(b), as applicable, in which case the Trustee shall have no such
responsibility)
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
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(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibit A; provided that any of the Certificates may be
issued with appropriate insertions, omissions, substitutions and variations, and
may have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Agreement, as may be required to comply
with any law or with rules or regulations pursuant thereto, or with the rules of
any securities market in which the Certificates are admitted to trading, or to
conform to general usage. The Certificates will be issuable in registered form
only; provided, however, that in accordance with Section 5.03 beneficial
ownership interests in the Regular Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Regular
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances or initial Certificate Notional Amounts, as the
case may be, as of the Closing Date of not less than $10,000 in the case of the
Registered Certificates $1,000,000 in the case of the Class IO Certificates, and
$250,000 in the case of Non-Registered Certificates (other than the Residual
Certificates and the Class IO Certificates), and in each such case in integral
multiples of $1 in excess thereof. The Class R-I Certificates, the Class R-II
Certificates and the Class Z Certificates shall have no minimum denomination and
shall each be represented by a single definitive certificate.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
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(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar (located as of the Closing Date at 000 X.
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed
Securities Trust Services Group-First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-C1), shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Paying Agent is hereby initially appointed
(and hereby agrees to act in accordance with the terms hereof) as Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Special Servicer and the Master Servicer, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. If LaSalle Bank National Association is removed as
Paying Agent, then LaSalle Bank National Association shall be removed as
Certificate Registrar. The Depositor, the Trustee, the Master Servicer and the
Special Servicer shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. Upon written request of any Certificateholder made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar shall promptly furnish
such Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective Affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 hereto, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 hereto or as
Exhibit G-3 hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and upon acquisition of such a Certificate shall be
deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
In connection with transfer of the Non-Registered Certificates, the
Depositor shall furnish upon request of a Certificateholder or Certificate Owner
to such Holder or Certificate Owner and any prospective purchaser designated by
such Certificateholder or Certificate Owner the information required to be
delivered under paragraph (d)(4) of Rule 144A of the Securities Act.
Notwithstanding the foregoing, for so long as any Non-Registered
Certificate is a Book-Entry Certificate, (a) each prospective transferor of such
Certificate shall be deemed to have represented to the Trustee, the Paying
Agent, the Depositor and the transferee of such Certificate the information set
forth on Exhibit G-1 upon or prior to such transfer and (b) each prospective
transferee of such Certificate shall be deemed to have represented to the
Trustee, the Paying Agent, the Depositor and the transferor of such Certificate
the information set forth on Exhibit G-2 or Exhibit G-3 upon or prior to such
transfer.
(c) No transfer of a Certificate or any interest therein shall be
made to any "employee benefit plan" subject to Title I of ERISA, a "plan"
described by Section 4975(e)(1) of the Code or any other retirement plan or
other employee benefit plan or arrangement subject to applicable federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, or any entity deemed to hold plan assets of the foregoing by
reason of such a plan's investment in such entity (each, a "Plan") unless (A) in
the case of a Certificate other than a Residual Certificate or a Class Z
Certificate, the transferee is an insurance company general account which is
eligible for, and satisfies all the requirements of, exemptive relief under
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
95-60 ("PTE 95-60") or (B) in the case of a Certificate other than an ERISA
Restricted Certificate, a Residual Certificate or a Class Z Certificate, the
transferee (1) qualifies as an accredited investor as defined in Rule 501(a)(1)
of Regulation D under the Securities Act and (2) satisfies all the requirements
of the Exemption as in effect at the time of such transfer. Each Person who
acquires a Certificate in Definitive Certificate form shall be required to
certify in writing in the form attached as Exhibit H hereto that it meets the
foregoing conditions and that it will not transfer such Certificate in violation
of the foregoing, and each Person who acquires a Certificate in Book-Entry
Certificate form shall be deemed to have represented that the foregoing
conditions are satisfied and that it will not transfer such Certificate in
violation of the foregoing.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii)(A) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such sale. The
rights of each Person acquiring any Ownership Interest in a Residual Certificate
are expressly subject to the following provisions:
(1) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Master Servicer, the Paying Agent and the
Certificate Registrar of any change or impending change in its
status as a Permitted Transferee.
(2) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of an affidavit and agreement
substantially in the form attached hereto as Exhibit I (a "Transfer
Affidavit and Agreement"), from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, and upon which
the Certificate Registrar may, in the absence of actual knowledge by
a Responsible Officer of the Certificate Registrar to the contrary,
conclusively rely, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the Residual Certificate that is
the subject of the proposed Transfer as a nominee, trustee or agent
for any Person that is not a Permitted Transferee, that for so long
as it retains its Ownership Interest in a Residual Certificate, it
will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(3) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(4) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a certificate substantially in the form attached hereto as Exhibit
I-2 stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee.
(5) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Master Servicer and the Paying Agent
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(d) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, the Certificate Registrar shall have the
right, without notice to the Holder or any prior Holder of such
Residual Certificate, to cause the transfer of such Residual
Certificate to a Permitted Transferee on such terms as the
Certificate Registrar may choose. Such purported Transferee shall
promptly endorse and deliver such Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such Permitted
Transferee may be the Certificate Registrar itself or any Affiliate
of the Certificate Registrar. Any proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Paying Agent to such purported
Transferee. The terms and conditions of any sale under this clause
(ii)(B) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions any
information available to it which is necessary to compute any tax imposed
as a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate, and the Master Servicer and the
Special Servicer shall furnish to the Certificate Registrar all
information in its possession necessary for the Certificate Registrar to
discharge such obligation. The transferor of such Ownership Interest shall
be responsible for the reasonable compensation of the Certificate
Registrar, the Master Servicer and the Special Servicer for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Certificate Registrar and the Master
Servicer the following:
(1) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then-current rating of any Class of Certificates;
and
(2) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at
the expense of the party seeking such modification of, addition to
or elimination of such provisions (but in no event at the expense of
the Trust Fund), to the effect that doing so will not cause either
REMIC I or REMIC II to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
SECTION 5.03 Book-Entry Certificates.
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(a) Each Class of Regular Certificates shall initially be issued as
one or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.03(c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in Section 5.03(c) below, shall not be entitled to definitive, fully
registered Certificates ("Definitive Certificates") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Paying Agent, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
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If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee and the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of the same Class and like Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05 Persons Deemed Owners.
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Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as of the related Record Date
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and may treat the person whose name each Certificate is
registered as of the date of determination as the owner of such Certificate for
all other purposes whatsoever and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar
or any agent of any of them shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicer and
Special Servicer.
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The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of Depositor
or Master Servicer or Special Servicer.
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Subject to the following paragraph, the Depositor and the Special
Servicer shall each keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement, and the Master Servicer shall keep in full effect
its existence and rights as a national banking association under the laws of the
United States.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which may be limited to all or
substantially all of its assets related to commercial mortgage loan servicing)
to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Master Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business (which may
be limited to the commercial loan servicing business) of the Depositor, the
Master Servicer or the Special Servicer, shall be the successor of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that no successor or surviving Person shall
succeed to the rights of the Master Servicer or the Special Servicer unless (i)
as evidenced in writing by the Rating Agencies, such succession will not result
in qualification, downgrading or withdrawal of the ratings then assigned by the
Rating Agencies to any Class of Certificates and (ii) such successor or
surviving Person makes the applicable representations and warranties set forth
in Section 3.23. Upon the consummation of the merger between First Union and
Wachovia Bank, N.A., the surviving entity will assume the rights and obligations
of the Master Servicer under this Agreement without any further consent or
approval and without execution of any document.
SECTION 6.03 Limitation on Liability of Depositor, Master
Servicer and Special Servicer.
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None of the Depositor, the Master Servicer, the Special Servicer or
any of their respective directors, officers, employees or agents shall be under
any liability to the Trust Fund, the Trustee, the Paying Agent, the
Certificateholders or the Companion Holders for any action taken, or not taken,
in good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Master
Servicer, the Special Servicer or any such Person against any liability to the
Trust Fund, the Trustee, the Paying Agent, the Certificateholders or the
Companion Holders for the breach of a representation, warranty or covenant made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder or the negligent disregard of such obligations and duties.
The Depositor, the Master Servicer, the Special Servicer and any director,
officer, employee or agent of the Depositor, the Master Servicer or the Special
Servicer may rely in good faith on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, member, manager, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund against any loss, liability or reasonable expense incurred in
connection with this Agreement, the Certificates or any asset of the Trust Fund
(including, without limitation, the distribution or posting of reports or other
information as contemplated by this Agreement), other than any loss, liability
or expense: (i) specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof (including without limitation, those
expenses set forth in Section 3.11(b) and the last sentence of the definition of
Servicing Advances); (ii) incurred in connection with any breach of a
representation, warranty or covenant made herein; or (iii) incurred by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder or the negligent disregard of such obligations and duties.
None of the Depositor, the Master Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action unless
such action is related to its respective duties under this Agreement and, unless
it is specifically required hereunder to bear the costs of such legal action, in
its opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Certificate Account as
provided in Section 3.05. In no event shall the Master Servicer or the Special
Servicer be liable or responsible for any action taken or omitted to be taken by
the other of them or by the Depositor, the Trustee, the Paying Agent or any
Certificateholder, subject to the provisions of the last paragraph of Section
8.05.
SECTION 6.04 Resignation of Master Servicer and the Special
Servicer.
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The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and the Special
Servicer shall have the right to resign at any other time provided that (i) a
willing successor thereto has been found by the Master Servicer or Special
Servicer, as applicable, (ii) each of the Rating Agencies confirms in writing
that the successor's appointment will not result in a withdrawal, qualification
or downgrade of any rating or ratings assigned to any Class of Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation. Neither the Master Servicer nor the Special Servicer shall
be permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee or the Special
Servicing Fee and any Workout Fee, as the case may be, that accrues pursuant
hereto from and after the date of such transfer shall be payable to such
successor.
SECTION 6.05 Rights of Depositor, the Paying Agent and Trustee in
Respect of Master Servicer and the Special Servicer.
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Upon reasonable request, the Master Servicer and the Special
Servicer shall each afford the Depositor, the Underwriters, the Trustee and the
Paying Agent, upon reasonable notice, during normal business hours access to all
records maintained thereby in respect of its rights and obligations hereunder
and access to officers thereof responsible for such obligations. Upon reasonable
request, the Master Servicer and the Special Servicer shall each furnish the
Depositor, the Underwriters, the Trustee and the Paying Agent with its most
recent publicly available financial statements and such other information as it
possesses, and which it is not prohibited by applicable law or contract from
disclosing, regarding its business, affairs, property and condition, financial
or otherwise, except to the extent such information constitutes proprietary
information or is subject to a privilege under applicable law. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer and
the Special Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer or
Special Servicer hereunder or exercise the rights of the Master Servicer and the
Special Servicer hereunder; provided, however, that neither the Master Servicer
nor the Special Servicer shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee and, further
provided, that the Depositor may not exercise any right pursuant to Section 7.01
to terminate the Master Servicer or the Special Servicer as a party to this
Agreement. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee and the Paying Agent.
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The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee or the Paying Agent in order to enable it to perform
its duties hereunder.
SECTION 6.07 Depositor, Special Servicer, Paying Agent and
Trustee to Cooperate with Master Servicer.
---------------------------------------------
The Depositor, the Special Servicer, Paying Agent and the Trustee
shall each furnish such reports, certifications and information as are
reasonably requested by the Master Servicer in order to enable it to perform its
duties hereunder.
SECTION 6.08 Depositor, Master Servicer, Paying Agent and
Trustee to Cooperate with Special Servicer.
--------------------------------------------
The Depositor, the Master Servicer, Paying Agent and the Trustee
shall each furnish such reports, certifications and information as are
reasonably requested by the Special Servicer in order to enable it to perform
its duties hereunder.
SECTION 6.09 Designation of Special Servicer by the Controlling
Class.
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The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.04 (including, without limitation, Rating Agency confirmation) to serve as
Special Servicer hereunder and to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer; provided that such Holder or Holders shall pay all costs related to
the transfer of servicing if the Special Servicer is replaced other than due to
an Event of Default or resignation. Such Holder or Holders may also select a
Controlling Class Representative that may advise and direct the Special Servicer
and whose approval is required for certain actions, as described herein. Such
Holder or Holders shall so designate a Person to serve as replacement Special
Servicer by the delivery to the Trustee, the Paying Agent, the Master Servicer
and the existing Special Servicer of a written notice stating such designation.
The Trustee shall, promptly after receiving any such notice, deliver to the
Rating Agencies an executed Notice and Acknowledgment in the form attached
hereto as Exhibit J-1. If such Holders have not replaced the Special Servicer
within 30 days of such Special Servicer's resignation or the date such Special
Servicer has ceased to serve in such capacity, the Trustee shall designate a
successor Special Servicer meeting the requirements set forth in Section 6.04.
Any designated Person shall become the Special Servicer, subject to satisfaction
of the other conditions set forth below, on the date that the Trustee shall have
received written confirmation from all of the Rating Agencies that the
appointment of such Person will not result in the qualification, downgrading or
withdrawal of the rating or ratings assigned to one or more Classes of the
Certificates. The appointment of such designated Person as Special Servicer
shall also be subject to receipt by the Trustee of (1) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed
by the designated Person, and (2) an Opinion of Counsel (at the expense of the
Person designated to become the Special Servicer) to the effect that the
designation of such Person to serve as Special Servicer is in compliance with
this Section 6.09 and all other applicable provisions of this Agreement, that
upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer the designated Person shall be bound by the terms of this Agreement,
that the designated Person is in good standing and has authorized the assumption
and that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that the resigning Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation (including
Workout Fees earned on Specially Serviced Mortgage Loans which became Corrected
Mortgage Loans to which the Special Servicer is entitled prior to the effective
date of such resignation), and it shall continue to be entitled to the benefits
of Section 6.03 notwithstanding any such resignation. Such resigning Special
Servicer shall cooperate with the Trustee and the replacement Special Servicer
in effecting the termination of the resigning Special Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the Certificate Account or the REO
Account or delivered to the Master Servicer or that are thereafter received with
respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
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The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Paying Agent a written notice that (a) states that it is
delivered pursuant to this Section 6.10, (b) identifies the Percentage Interest
in each Class of Certificates beneficially owned by the Master Servicer or the
Special Servicer or an Affiliate of the Master Servicer or the Special Servicer,
and (c) describes in reasonable detail the action that the Master Servicer or
the Special Servicer proposes to take. The Paying Agent, upon receipt of such
notice, shall forward it to the Certificateholders (other than the Master
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
appropriate), together with such instructions for response as the Paying Agent
shall reasonably determine. If at any time Certificateholders holding greater
than 50% of the Voting Rights of all Certificateholders (calculated without
regard to the Certificates beneficially owned by the Master Servicer or its
Affiliates or the Special Servicer or its Affiliates) shall have failed to
object in writing to the proposal described in the written notice, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice within thirty (30) days, such action shall be deemed to comply with, but
not modify, the Servicing Standard. The Paying Agent shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Paying Agent incurred pursuant to this
paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, but rather
in the case of unusual circumstances.
SECTION 6.11 The Controlling Class Representative.
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The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything herein to the contrary except as necessary or
advisable to avoid an Adverse REMIC Event and except as set forth in, and in any
event subject to, the second paragraph of this Section 6.11, the Special
Servicer will not be permitted to take any of the following actions as to which
the Controlling Class Representative has objected in writing within five
Business Days of being notified thereof, which notification with respect to the
action described in clause (vi) below shall be copied by the Special Servicer to
the Master Servicer (provided that if such written objection has not been
received by the Special Servicer within such five Business Day period, then the
Controlling Class Representative's approval will be deemed to have been given):
(i) any actual or proposed foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any modification or waiver of a Money Term of a Mortgage Loan
other than a modification consisting of the extension of the maturity date
of a Mortgage Loan for one year or less;
(iii) any proposed or actual sale of an REO Property (other than in
connection with the termination of the Trust Fund or pursuant to Section
3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan unless required by the underlying loan documents;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance"
clause;
(vii) any release of any performance or "earn-out" reserves, escrows
or letters of credit; and
(viii) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any applicable
law, any term of a Mortgage Loan, any provision of this Agreement or the REMIC
Provisions (and the Special Servicer shall disregard any such direction or
objection), including without limitation the Special Servicer's obligation to
act in accordance with the Servicing Standard, or expose the Master Servicer,
the Special Servicer, a Mortgage Loan Seller, the Trust Fund, the Paying Agent,
the Trustee or their Affiliates, officers, directors, employees or agents to any
claim, suit or liability, or materially expand the scope of the Special Servicer
or the Special Servicer's responsibilities hereunder or cause the Special
Servicer to act, or fail to act, in a manner which in the reasonable judgment of
the Special Servicer is not in the best interests of the Certificateholders and
the Special Servicer will neither follow any such direction if given by the
Controlling Class Representative nor take or refrain from taking such actions.
The Controlling Class Representative will have no liability to any
Certificateholder other than a Controlling Class Certificateholder for any
action taken, or for refraining from the taking of any action and will have no
liability to any Controlling Class Certificateholder except liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Controlling Class
Representative may take actions that favor the interests of one or more Classes
of the Certificates over other Classes of the Certificates, and that the
Controlling Class Representative may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates, that
the Controlling Class Representative may act solely in the interests of the
Holders of the Controlling Class, that the Controlling Class Representative does
not have any duties to the Holders of any Class of Certificates other than the
Controlling Class, that the Controlling Class Representative shall not be deemed
to have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the Holders of the Controlling Class, and that the Controlling Class
Representative shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Controlling Class
Representative or any director, officer, employee, agent or principal thereof
for having so acted.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
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(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account, or to deposit into, or remit to the Paying Agent for
deposit into, the Distribution Account, any amount (other than a P&I
Advance) required to be so deposited or remitted by it under this
Agreement, which failure, in the case of deposits and remittances to the
Distribution Account, continues unremedied until 10:00 a.m., New York City
time on the related Distribution Date, provided further, however, that to
the extent the Master Servicer does not timely make such remittances, the
Master Servicer shall pay the Paying Agent for the account of the Paying
Agent interest on any amount not timely remitted at the Prime Rate from
and including the applicable required remittance date to but not including
the date such remittance is actually made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Certificate Account, any amount required to be so deposited or
remitted under this Agreement within one Business Day of the date upon
which such deposit or remittance is required hereunder; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of five Business Days following the
date on which notice shall have been given to the Master Servicer, as the
case may be, by the Trustee as provided in Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer or the Special Servicer, as the
case may be, by any other party hereto or the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure period
of thirty (30) days to effect such cure so long as the Master Servicer or
the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and has provided the Trustee with
an Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or the Master
Servicer or the Special Servicer, as the case may be (with a copy to each
other party hereto), by the Holders of Certificates entitled to at least
25% of the Voting Rights, provided, however, that with respect to any
failure which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days so long as the Master Servicer
or the Special Servicer, as the case may be, has commenced to cure within
the initial 30-day period and provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is continuing
to pursue, a full cure; or
(vi) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(vii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(viii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(ix) the consolidated net worth of the Master Servicer and of its
direct or indirect parent, determined in accordance with generally
accepted accounting principles, shall decline to less than $15,000,000; or
(x) the Trustee shall have received a written notice from Xxxxx'x
(which the Trustee shall promptly forward to the Master Servicer or the
Special Servicer, as applicable), to the effect that if the Master
Servicer or the Special Servicer, as applicable, continues to act in such
capacity, the rating or ratings on one or more Classes of Certificates
will be downgraded or withdrawn, citing servicing concerns relating to the
Master Servicer or the Special Servicer, as the case may be, as the sole
or material factor in such action, if such Master Servicer or the Special
Servicer, as applicable, is not replaced; provided, however, that the
Master Servicer or the Special Servicer, as applicable, shall have sixty
(60) days to resolve such matters to the satisfaction of Xxxxx'x (or such
longer time period as may be agreed in writing by Xxxxx'x) prior to the
replacement of the Master Servicer or the Special Servicer or the
downgrade of any Class of Certificates; or
(xi) the Master Servicer or the Special Servicer, as the case may
be, is removed from S&P's approved master servicer list or special
servicer list, as the case may be, and the ratings of any of the
Certificates by S&P are downgraded, qualified or withdrawn (including,
without limitation, placed on "negative credit watch") in connection with
such removal; or
(xii) the Master Servicer shall fail to remit to the Paying Agent
for deposit into the Distribution Account, on any P&I Advance Date, the
full amount of P&I Advances required to be made on such date, which
failure continues unremedied until 10:00 a.m. New York City time on the
next Business Day succeeding such P&I Advance Date; provided, however,
that to the extent the Master Servicer does not timely make such
remittances, the Master Servicer shall pay the Paying Agent for the
account of the Paying Agent interest on any amount not timely remitted at
the Prime Rate from and including the applicable required remittance date
to but not including the date such remittance is actually made.
(b) If any Event of Default shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies), terminate all of the rights and obligations
(but not the liabilities for actions and omissions occurring prior thereto) of
the Defaulting Party under this Agreement and in and to the Trust Fund, other
than its rights as a Certificateholder hereunder. From and after the receipt by
the Defaulting Party of such written notice of termination, all authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agree that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records, including those in electronic form, requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, (i) the
immediate transfer to the Trustee or a successor Master or Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, a Servicing Account or a Reserve Account (if the Master
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or (ii) the transfer within two
Business Days to the Trustee or a successor Special Servicer for administration
by it of all cash amounts that shall at the time be or should have been credited
by the Special Servicer to the REO Account, the Certificate Account, a Servicing
Account or a Reserve Account or delivered to the Master Servicer (if the Special
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or REO Property (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any cost or expenses in connection with any actions to be taken by
the Master Servicer, the Special Servicer or the Trustee pursuant to this
paragraph shall be borne by the Defaulting Party and if not paid by the
Defaulting Party within 90 days after the presentation of reasonable
documentation of such costs and expenses, such expense shall be reimbursed by
the Trust Fund; provided, however, that the Defaulting Party shall not thereby
be relieved of its liability for such expenses. If and to the extent that the
Defaulting Party has not reimbursed such costs and expenses, the Trustee shall
have an affirmative obligation to take all reasonable actions to collect such
expenses on behalf of and at the expense of the Trust Fund. For purposes of this
Section 7.01 and of Section 7.03(b), the Trustee shall not be deemed to have
knowledge of an event which constitutes, or which with the passage of time or
notice, or both, would constitute an Event of Default described in clauses
(i)-(viii) of subsection (a) above unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless notice of any event which is in fact such
an Event of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) If the Master Servicer receives a notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(x) or
(xi) and if the terminated Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within the five Business Days after
such termination notice, the Master Servicer shall continue to serve as Master
Servicer hereunder until a successor Master Servicer is selected in accordance
with this Section 7.01(c); provided the Trustee has requested the Master
Servicer to continue to serve as the Master Servicer during such period. Upon
receipt of the "request for proposal" materials, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Master Servicer hereunder in accordance with Sections 6.02
and 7.02 (any such Person so qualified, a "Qualified Bidder") or, if three (3)
Qualified Bidders cannot be located, then from as many Persons as the Trustee
can determine are Qualified Bidders; provided that, at the Trustee's request,
the Master Servicer to be terminated pursuant to Section 7.01(b) shall supply
the Trustee with the names of Persons from whom to solicit such bids; and
provided, further, that the Trustee shall not be responsible if less than three
(3) or no Qualified Bidders submit bids for the right to master service the
Mortgage Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Master Servicer, and to agree to be bound by the
terms hereof, within 45 days after the notice of termination to the Master
Servicer. The materials provided to the Trustee shall provide for soliciting
bids (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Mortgage Loans pursuant
to the terms of the respective Sub-Servicing Agreements and to enter into a
Sub-Servicing Agreement with the terminated Master Servicer to service each of
the Mortgage Loans not subject to a Sub-Servicing Agreement at a servicing fee
rate per annum equal to the Master Servicing Fee Rate minus 2.5 basis points per
Mortgage Loan serviced (each, a "Servicing-Retained Bid") and (ii) on the basis
of terminating each Sub-Servicing Agreement and Sub-Servicer that it is
permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing-Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above), no later
than 45 days after the termination of the Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
Master Servicer to be terminated pursuant to Section 7.01(b) the amount of such
cash bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing) and
(ii) if the successful bid was a Servicing-Released Bid, to the Master Servicer
and each terminated Sub-Servicer its respective Bid Allocation (net of
"out-of-pocket" expenses incurred in connection with obtaining such bid and
transferring servicing).
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within such 45 day period or no Successful Bidder was
identified within such 45-day period, the Master Servicer to be terminated
pursuant to Section 7.01(b) shall reimburse the Trustee for all reasonable
"out-of-pocket" expenses incurred by the Trustee in connection with such bid
process and the Trustee shall have no further obligations under this Section
7.01(c). The Trustee thereafter may act or may select a successor to act as
Master Servicer hereunder in accordance with Section 7.02.
SECTION 7.02 Trustee to Act; Appointment of Successor.
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On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04, be the successor in all respects to the Master Servicer or the
Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, the unmade P&I Advances that gave
rise to such Event of Default; provided, that if the Master Servicer is the
resigning or terminated party, and if after the Closing Date the Trustee is
prohibited by law or regulation from obligating itself to make P&I Advances (as
evidenced by an Opinion of Counsel delivered to the Depositor and the Rating
Agencies) the Trustee shall not be obligated to make such P&I Advances and
provided, further, that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's, as the case may be,
failure to provide information or monies required by Section 7.01 shall not be
considered a default by the Trustee hereunder. Notwithstanding anything contrary
in this Agreement, the Trustee shall in no event be held responsible or liable
with respect to any of the acts, omissions, representations and warranties of
the resigning or terminated party (other than the Trustee) or for any losses
incurred by such resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to all fees
and other compensation which the resigning or terminated party would have been
entitled to if the resigning or terminated party had continued to act hereunder
(other than any fees previously earned by the Master Servicer or the Special
Servicer, including Workout Fees). Notwithstanding the above and subject to its
obligations under Section 3.22(d) and 7.01(b), the Trustee may, if it shall be
unwilling in its sole discretion to so act as either Master Servicer or Special
Servicer, as the case may be, or shall, if it is unable to so act as either
Master Servicer or Special Servicer, as the case may be, or shall, if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies or if the Holders of Certificates entitled
to at least 51% of the Voting Rights so request in writing to the Trustee,
promptly appoint, subject to the approval of each of the Rating Agencies (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02 (including, without
limitation, rating agency confirmation); provided, however, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. Except with respect to an appointment provided below, no
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption of the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. Notwithstanding the above, the Trustee shall, if the Master Servicer
is the resigning or terminated party and the Trustee is prohibited by law or
regulation from making P&I Advances, promptly appoint any established mortgage
loan servicing institution that has a net worth of not less than $15,000,000 and
is otherwise acceptable to each Rating Agency (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause the qualification, downgrading or withdrawal of the then current
rating on any Class of Certificates), as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder (including, without limitation,
the obligation to make P&I Advances), which appointment will become effective
immediately. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. Such successor and the
other parties hereto shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.03 Notification to Certificateholders.
----------------------------------
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Paying Agent shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Paying Agent has notice of the occurrence of such an event, the Paying Agent
shall transmit by mail to the Depositor and all Certificateholders and the
Rating Agencies notice of such occurrence, unless such default shall have been
cured.
SECTION 7.04 Waiver of Events of Default.
---------------------------
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) , (ix), (x) or (xii) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
SECTION 7.05 Additional Remedies of Trustee Upon Event of
Default.
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During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
SECTION 8.01 Duties of Trustee and the Paying Agent.
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(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Paying Agent, as
applicable, which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein. If any such instrument is found not to
conform to the requirements of this Agreement in a material manner, the Trustee
or the Paying Agent, as applicable, shall take such action as it deems
appropriate to have the instrument corrected. The Trustee or the Paying Agent,
as applicable, shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor or the Master Servicer or the Special
Servicer, and accepted by the Trustee or the Paying Agent, as applicable, in
good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be personally
liable for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee or the Paying Agent, as
applicable, unless it shall be proved that the Trustee or the Paying
Agent, as applicable, was negligent in ascertaining the pertinent facts if
it was required to do so;
(iii) Neither the Trustee nor the Paying Agent shall be personally
liable with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of Holders of
Certificates entitled to at least 25% of the Voting Rights relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or the Paying Agent, as applicable, or exercising
any trust or power conferred upon the Trustee or the Paying Agent, as
applicable, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to the Paying Agent,
Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
SECTION 8.02 Certain Matters Affecting Trustee and the Paying
Agent.
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Except as otherwise provided in Section 8.01 and Article X:
(a) the Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) the Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(c) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or, except
as provided in Section 10.01 or 10.02, to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the Paying
Agent reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; neither the Trustee nor
the Paying Agent, as applicable, shall be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; provided, however, that nothing contained herein shall, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default which has not been
cured, to exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs;
(d) Neither the Trustee nor the Paying Agent shall be personally
liable for any action reasonably taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(e) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither the
Trustee nor the Paying Agent shall be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if the
payment within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee or the Paying
Agent, as applicable, not reasonably assured to the Trustee or the Paying Agent,
as applicable, by the security afforded to it by the terms of this Agreement,
the Trustee or the Paying Agent, as applicable, may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) the Trustee or the Paying Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys; provided, however, that the Trustee or the Paying
Agent, as applicable, shall remain responsible for all acts and omissions of
such agents or attorneys within the scope of their employment to the same extent
as it is responsible for its own actions and omissions hereunder;
(g) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer (unless,
in the case of the Trustee, the Trustee is acting as Master Servicer or the
Special Servicer) or the Depositor; and
(h) neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer imposed under Article V under this Agreement or under
applicable law with respect to any transfer of any Certificate or any interest
therein, other than to require delivery of the certification(s) and/or Opinions
of Counsel described in said Article applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register and
to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
SECTION 8.03 Trustee and Paying Agent Not Liable for Validity
or Sufficiency of Certificates or Mortgage Loans.
------------------------------------------------
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee or the Paying Agent, as applicable, in
Article II, Section 8.15 and Section 8.16 and the signature of the Certificate
Registrar and the Authenticating Agent set forth on each outstanding
Certificate, shall be taken as the statements of the Depositor or the Master
Servicer or the Special Servicer, as the case may be, and the Trustee and the
Paying Agent assume no responsibility for their correctness. Except as set forth
in Section 8.15 and Section 8.16, the Trustee and the Paying Agent, as
applicable, make no representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature of the Trustee
or the Paying Agent set forth thereon) or of any Mortgage Loan or related
document. Neither the Trustee nor the Paying Agent shall be accountable for the
use or application by the Depositor of any of the Certificates issued to it or
of the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor in respect of the assignment of the Mortgage Loans to the
Trust Fund, or any funds deposited in or withdrawn from the Certificate Account
or any other account by or on behalf of the Depositor, the Master Servicer, the
Special Servicer or the Paying Agent (unless the Trustee or LaSalle Bank
National Association is acting as Paying Agent). Neither the Trustee nor the
Paying Agent shall be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee or the Paying Agent, as applicable, in good faith,
pursuant to this Agreement.
SECTION 8.04 Trustee or Paying Agent May Own Certificates.
--------------------------------------------
The Trustee or the Paying Agent or any agent of the Trustee or the
Paying Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with the same rights (except as otherwise provided in
the definition of "Certificateholder") it would have if it were not the Trustee,
the Paying Agent or such agent.
SECTION 8.05 Fees and Expenses of Trustee and the Paying Agent;
Indemnification of Trustee and the Paying Agent.
--------------------------------------------------
(a) On each Distribution Date, the Paying Agent shall withdraw from
the general funds on deposit in the Distribution Account as provided in Section
3.05(b), prior to any distributions to be made therefrom on such date, and pay
to itself and to the Trustee all earned but unpaid Trustee Fees, as compensation
for all services rendered by the Trustee and the Paying Agent, respectively, in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee and the Paying Agent,
respectively, hereunder at the Trustee Fee Rate from which an amount equal to
the Paying Agent Fee shall be paid to the Paying Agent and the remainder shall
be paid to the Trustee. The Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee, the Paying Agent and any director, officer,
employee, affiliate, agent or "control" person within the meaning of the
Securities Act of 1933 of the Trustee or the Paying Agent shall be entitled to
be indemnified for and held harmless by the Trust Fund against any loss,
liability or reasonable "out-of-pocket" expense (including, without limitation,
costs and expenses of litigation, and of investigation, counsel fees, damages,
judgments and amounts paid in settlement) arising out of, or incurred in
connection with this Agreement, the Mortgage Loans or the Certificates or any
act of the Master Servicer or the Special Servicer taken on behalf of the
Trustee or the Paying Agent as provided for herein; provided, that none of the
Trustee, the Paying Agent nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (1) any
liability specifically required to be borne thereby pursuant to the terms
hereof, or (2) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's or the
Paying Agent's respective obligations and duties hereunder, or by reason of its
negligent disregard of such obligations and duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee or the Paying
Agent, as applicable, made herein. The provisions of this Section 8.05(b) shall
survive any resignation or removal of the Trustee or the Paying Agent, as
applicable and appointment of a successor Trustee or Paying Agent, as
applicable.
SECTION 8.06 Eligibility Requirements for Trustee and Paying
Agent.
-----------------------------------------------
The Trustee and the Paying Agent hereunder shall at all times be an
association or a corporation organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $100,000,000 and subject to supervision or examination
by a federal or state banking authority. If such association or corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such association or
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Trustee and the Paying
Agent shall each also be an entity with a long term unsecured debt rating of at
least "AA-" by S&P and "Aa3" by Xxxxx'x (determined without regard to numerical
qualifications or pluses or minuses) or such other rating that shall not result
in the qualification, downgrading or withdrawal of the rating or ratings
assigned to one or more Classes of the Certificates by any Rating Agency as
confirmed in writing. In case at any time the Trustee or the Paying Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee or the Paying Agent, as the case may be, shall resign immediately in the
manner and with the effect specified in Section 8.07; provided, that if the
Trustee or the Paying Agent, as applicable, shall cease to be so eligible
because its combined capital and surplus is no longer at least $100,000,000 or
its long-term unsecured debt rating no longer conforms to the requirements of
the immediately preceding sentence, and if the Trustee or the Paying Agent, as
applicable, proposes to the other parties hereto to enter into an agreement with
(and reasonably acceptable to) each of them, and if in light of such agreement
the Trustee's or the Paying Agent's continuing to act in such capacity would not
(as evidenced in writing by each Rating Agency) cause any Rating Agency to
qualify, downgrade or withdraw any rating assigned thereby to any Class of
Certificates, then upon the execution and delivery of such agreement the Trustee
or the Paying Agent, as applicable, shall not be required to resign, and may
continue in such capacity, for so long as none of the ratings assigned by the
Rating Agencies to the Certificates is qualified, downgraded or withdrawn
thereby. The corporation or association serving as Trustee or the Paying Agent
may have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates but, except to
the extent permitted or required by Section 7.02, the Trustee shall not be an
"Affiliate" (as such term is defined in Section III of PTE 2000-58) of the
Master Servicer, the Special Servicer, any sub-servicer, the Underwriters, the
Depositor, or any obligor with respect to Mortgage Loans constituting more than
5.0% of the aggregate authorized principal balance of the Mortgage Loans as of
the date of the initial issuances of the Certificates or any "Affiliate" (as
such term is defined in Section III of PTE 2000-58) of any such person.
SECTION 8.07 Resignation and Removal of Trustee and the Paying
Agent.
-------------------------------------------------
(a) The Trustee and the Paying Agent each may at any time resign and
be discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Special Servicer and to all
Certificateholders at their respective addresses set forth in the Certificate
Register. Upon receiving such notice of resignation, the Master Servicer shall
promptly appoint a successor Trustee or Paying Agent, as applicable, meeting the
requirements in Section 8.06 and acceptable to the Depositor and the Rating
Agencies by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Paying Agent, as applicable, and to the
successor Trustee or Paying Agent, as applicable. A copy of such instrument
shall be delivered to the Depositor, the Special Servicer and the
Certificateholders by the Master Servicer. If no successor Trustee or Paying
Agent, as applicable, shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or Paying Agent, as applicable, may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Paying Agent, as
applicable.
(b) If at any time the Trustee or the Paying Agent, as applicable,
shall cease to be eligible in accordance with the provisions of Section 8.06 and
shall fail to resign after written request therefor by the Depositor or the
Master Servicer, or if at any time the Trustee or the Paying Agent, as
applicable, shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or the Paying Agent, as applicable, or
of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or the Paying Agent, as applicable, or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Paying Agent shall fail (other than by reason of the failure of either the
Master Servicer or the Special Servicer to timely perform its obligations
hereunder or as a result of other circumstances beyond the Paying Agent's
reasonable control), to timely deliver any report to be delivered by the Paying
Agent pursuant to Section 4.02 and such failure shall continue unremedied for a
period of five days, or if the Paying Agent fails to make distributions required
pursuant to Section 3.05(b), 4.01 or 9.01, then the Depositor may remove the
Trustee or the Paying Agent, as applicable, and appoint a successor Trustee or
Paying Agent, as applicable, if necessary, acceptable to the Master Servicer and
the Rating Agencies (as evidenced by written confirmation therefrom to the
effect that the appointment of such institution would not cause the
qualification, downgrading or withdrawal of the then current rating on any Class
of Certificates) by written instrument, in duplicate, which instrument shall be
delivered to the Trustee or Paying Agent so removed and to the successor Trustee
or Paying Agent. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or the Paying Agent and appoint
a successor Trustee or Paying Agent, if necessary, by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Master Servicer, one complete set to the Trustee or Paying Agent so removed and
one complete set to the successor Trustee or Paying Agent so appointed. A copy
of such instrument shall be delivered to the Depositor, the Special Servicer and
the remaining Certificateholders by the successor so appointed. In the event
that the Trustee or the Paying Agent is terminated or removed pursuant to this
Section 8.07, all of its rights and obligations under this Agreement and in and
to the Mortgage Loans shall be terminated, other than any rights or obligations
that accrued prior to the date of such termination or removal (including the
right to receive all fees, expenses and other amounts (including, without
limitation, P&I Advances and accrued interest thereon) accrued or owing to it
under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee or Paying Agent, as applicable).
(d) Any resignation or removal of the Trustee or Paying Agent, as
applicable, and appointment of a successor Trustee or Paying Agent, as
applicable, pursuant to any of the provisions of this Section 8.07 shall not
become effective until acceptance of appointment by the successor Trustee or
Paying Agent, as applicable, as provided in Section 8.08.
SECTION 8.08 Successor Trustee or Paying Agent.
---------------------------------
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to its predecessor Trustee or Paying Agent,
as applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Paying Agent, as
applicable, shall become effective and such successor Trustee or Paying Agent,
as applicable, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee or paying
agent herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held on its behalf by a third-party
Custodian, which Custodian shall become the agent of the successor trustee), and
the Depositor, the Master Servicer, the Special Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to enable
the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and the Rating Agencies
have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee.
----------------------------------
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06 and the Rating Agencies have provided confirmation pursuant to
such Section, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11 Appointment of Custodians.
-------------------------
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of assumption, obligations of the Custodian
under such agreement or alternatively, may terminate such agreement without
cause and without payment of any penalty or termination fee; and (iii) not
permit the Custodian any rights of indemnification that may be satisfied out of
assets of the Trust Fund. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of any Custodian. The
initial Custodian shall be the Trustee. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12 Appointment of Authenticating Agents.
------------------------------------
(a) The Paying Agent may at the Paying Agent's expense appoint one
or more Authenticating Agents, which shall be authorized to act on behalf of the
Paying Agent in authenticating Certificates. The Paying Agent shall cause any
such Authenticating Agent to execute and deliver to the Paying Agent an
instrument in which such Authenticating Agent shall agree to act in such
capacity, in accordance with the obligations and responsibilities herein. Each
Authenticating Agent must be organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to do a
trust business, have a combined capital and surplus of at least $15,000,000, and
be subject to supervision or examination by federal or state authorities. Each
Authenticating Agent shall be subject to the same obligations, standard of care,
protection and indemnities as would be imposed on, or would protect, the Paying
Agent hereunder. The appointment of an Authenticating Agent shall not relieve
the Paying Agent from any of its obligations hereunder, and the Paying Agent
shall remain responsible and liable for all acts and omissions of the
Authenticating Agent. If LaSalle Bank National Association is removed as Paying
Agent, then LaSalle Bank National Association shall be terminated as
Authenticating Agent. If the Authenticating Agent (other than LaSalle Bank
National Association) resigns or is terminated, the Paying Agent shall appoint a
successor Authenticating Agent which may be the Paying Agent or an Affiliate
thereof. In the absence of any other Person appointed in accordance herewith
acting as Authenticating Agent, the Paying Agent hereby agrees to act in such
capacity in accordance with the terms hereof. Notwithstanding anything herein to
the contrary, if the Paying Agent is no longer the Authenticating Agent, any
provision or requirement herein requiring notice or any information or
documentation to be provided to the Authenticating Agent shall be construed to
require that such notice, information or documentation also be provided to the
Paying Agent.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Paying Agent, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Paying Agent may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.12, the Paying Agent may
appoint a successor Authenticating Agent, in which case the Paying Agent shall
given written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. No Authenticating Agent shall have responsibility
or liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13 Access to Certain Information.
-----------------------------
The Trustee and the Paying Agent shall afford to the Master
Servicer, the Special Servicer, each Rating Agency and the Depositor, any
Certificateholder and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to any documentation regarding the Mortgage Loans within its control that
may be required to be provided by this Agreement or by applicable law. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Trustee and the
Paying Agent designated by it. Upon request and with the consent of the
Depositor and at the cost of the requesting Party, the Trustee and the Paying
Agent shall provide copies of such documentation to the Depositor, any
Certificateholder and to the OTS, the FDIC and any other bank or insurance
regulatory authority that may exercise authority over any Certificateholder.
SECTION 8.14 Appointment of REMIC Administrators.
-----------------------------------
(a) The Paying Agent may appoint at the Paying Agent's expense,
one or more REMIC Administrators, which shall be authorized to act on behalf of
the Paying Agent in performing the functions set forth in Sections 3.17, 10.01
and 10.02 herein. The Paying Agent shall cause any such REMIC Administrator to
execute and deliver to the Paying Agent an instrument in which such REMIC
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein. The appointment of a REMIC Administrator shall not
relieve the Paying Agent from any of its obligations hereunder, and the Paying
Agent shall remain responsible and liable for all acts and omissions of the
REMIC Administrator. Each REMIC Administrator must be acceptable to the Paying
Agent and must be organized and doing business under the laws of the United
States of America or of any State and be subject to supervision or examination
by federal or state authorities. In the absence of any other Person appointed in
accordance herewith acting as REMIC Administrator, the Paying Agent hereby
agrees to act in such capacity in accordance with the terms hereof. If LaSalle
Bank National Association is removed as Paying Agent, then LaSalle Bank National
Association shall be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 8.14, the Paying Agent may
appoint a successor REMIC Administrator, in which case the Paying Agent shall
given written notice of such appointment to the Master Servicer and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor REMIC Administrator shall be
appointed unless eligible under the provisions of this Section 8.14. Any
successor REMIC Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as REMIC
Administrator. No REMIC Administrator shall have responsibility or liability for
any action taken by it as such at the direction of the Paying Agent.
SECTION 8.15 Representations, Warranties and Covenants of
Trustee.
--------------------------------------------
The Trustee hereby represents and warrants to the Master Servicer,
the Special Servicer, the Paying Agent and the Depositor and for the benefit of
the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in a material breach
of, any material agreement or other material instrument to which it is a
party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to carry on its business as now being conducted and to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof (including with respect to any advancing
obligations hereunder), subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
Trustee to perform its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Trustee to perform its
obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement or the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
SECTION 8.16 Representations, Warranties and Covenants of the
Paying Agent.
------------------------------------------------
The Paying Agent hereby represents and warrants to the Master
Servicer, the Special Servicer, the Trustee and the Depositor and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States.
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other material instrument to
which it is a party or by which it is bound.
(iii) The Paying Agent has the full power and authority to carry on
its business as now being conducted and to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof (including with respect to any
advancing obligations hereunder), subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely the
ability of the Paying Agent to perform its obligations under this
Agreement.
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent that, if determined
adversely to the Paying Agent, would prohibit the Paying Agent from
entering into this Agreement or, in the Paying Agent's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Paying Agent to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Paying Agent of or compliance by the Paying Agent with
this Agreement or the consummation of the transactions contemplated by
this Agreement has been obtained and is effective.
SECTION 8.17 Reports to the Securities and Exchange Commission;
Available Information.
--------------------------------------------------
The Paying Agent shall prepare for filing, and execute, on behalf of
the Trust Fund, and file with the Securities and Exchange Commission, (i) each
Distribution Date Statement on Form 8-K within 15 days after each Distribution
Date in each month, (ii) before March 31 of each year, beginning March 31, 2002,
a Form 10-K and (iii) any and all reports, statements and information respecting
the Trust Fund and/or the certificates required to be filed on behalf of the
Trust Fund under the Exchange Act as the Paying Agent may be directed by the
Depositor, until directed in writing by the Depositor to discontinue such
filings; provided that any such additional information referred to in clause
(iii) above shall be delivered to the Paying Agent in the format required for
electronic filing via the XXXXX system. For any filings pursuant to the previous
sentence that occur after the first anniversary of the Closing Date, the Paying
Agent shall receive a fee agreed upon by the Paying Agent and the Depositor in a
separate fee agreement. Upon such filing with the Securities and Exchange
Commission, the Paying Agent shall promptly deliver to the Depositor, the Master
Servicer and the Special Servicer a copy of any such executed report, statement
or information. The Depositor shall promptly file, and exercise its reasonable
best efforts to obtain a favorable response to, no-action requests to, or
requests for other appropriate exemptive relief from, the Securities and
Exchange Commission regarding the usual and customary exemption from certain
reporting requirements granted to issuers of securities similar to the
Certificates. The Depositor agrees to indemnify and hold harmless the Paying
Agent with respect to any liability, cost or expenses, including reasonable
attorneys' fees, arising from the Paying Agent's execution of such reports,
statements and information that contain errors or omissions or is otherwise
misleading, provided, however, that if the indemnification provided for herein
is invalid or unenforceable, then the Depositor shall contribute to the amount
paid by the Paying Agent as a result of such liability in such amount as is
necessary to limit the Paying Agent's responsibility for any such payment to any
amount resulting from its own negligence or willful misconduct. The Paying Agent
shall have no responsibility to determine whether or not any filing may be
required and shall not have any responsibility to review or confirm in any way
the accuracy or the sufficiency of the contents of any such filing.
SECTION 8.18 Maintenance of Mortgage File.
----------------------------
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel to the Depositor and the Rating Agencies to the effect that the
Trustee's first priority interest in the Mortgage Notes has been duly and fully
perfected under the applicable laws and regulations of such other jurisdiction.
SECTION 8.19 Companion Paying Agent.
----------------------
(a) The Paying Agent shall be the initial Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such duties and only
such duties as are specifically set forth herein. The Companion Paying Agent
shall promptly make available all reports delivered to it under this Agreement
to the Companion Holder.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its own negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement, the Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent and, in the absence of bad faith on the part of the Companion
Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth
and correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Paying Agent pursuant to
Article VIII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
SECTION 8.20 Companion Register.
------------------
The Companion Paying Agent shall maintain a register (the "Companion
Register") on which it will record the names and address of, and wire transfer
instructions for, the Companion Holder from time to time, to the extent such
information is provided in writing to it by the Companion Holder. The initial
Companion Holder, along with its name, address, wiring instructions and tax
identification number, is listed on Exhibit AA hereto. The Companion Holder
shall inform the Companion Paying Agent of the name, address, wiring
instructions and taxpayer identification number of any subsequent Companion
Holder upon any transfer of a Companion Loan. Upon the sale of a Companion Loan
or portion thereof, the transferring Companion Holder shall inform the Companion
Paying Agent in writing that such transfer has taken place and provide the
Companion Paying Agent with the name, address, wiring instructions and tax
identification number of the transferee. In the event the Companion Holder
transfers a Companion Loan without notice to the Companion Paying Agent, the
Companion Paying Agent shall have no liability for any misdirected payment in
the related Companion Loan and shall have no obligation to recover and redirect
such payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such names
and addresses.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
-------------------------------------------------
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent (other than
the obligations of the Paying Agent on behalf of the Trustee to provide for and
make payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) (i) to the Certificateholders of all amounts
held by or on behalf of the Paying Agent and required hereunder to be so paid on
the Distribution Date following the earlier to occur of (A) the purchase by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder of all Mortgage Loans and each REO Property remaining in REMIC
I at a price equal to (1) the aggregate Purchase Price of all the Mortgage Loans
included in REMIC I, plus (2) the appraised value of each REO Property, if any,
included in REMIC I, such appraisal to be conducted by an Independent Appraiser
selected by the Master Servicer and approved by the Trustee, minus (3) if the
purchaser is the Master Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer, together with any interest accrued and payable to
the Master Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Master Servicer in connection with such purchase), and (B) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I, and (ii) to the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer and the officers, directors,
employees and agents of each of them of all amounts which may have become due
and owing to any of them hereunder; provided, however, that in no event shall
the Trust Fund created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
The Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder may at its option elect to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I as contemplated by
clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1% of the aggregate
Cut-off Date Balances of the Mortgage Loans as of the Closing Date, and (ii) the
Master Servicer shall not have the right to effect such a purchase if, within 30
days following the Master Servicer's delivery of a notice of election pursuant
to this paragraph, the Depositor, the Special Servicer or the Majority
Subordinate Certificateholder shall give notice of its election to purchase all
of the Mortgage Loans and each REO Property remaining in REMIC I and shall
thereafter effect such purchase in accordance with the terms hereof. The Master
Servicer or the Majority Subordinate Certificateholder shall not have the right
to effect such a purchase if, within 30 days following the Special Servicer's
delivery of a notice of election pursuant to this paragraph, the Special
Servicer shall give notice of its election to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I and shall thereafter effect such
purchase in accordance with the terms hereof. If the Trust Fund is to be
terminated in connection with the Master Servicer's, the Special Servicer's or
the Majority Subordinate Certificateholder's purchase of all of the Mortgage
Loans and each REO Property remaining in REMIC I, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder, as applicable,
shall deliver to the Paying Agent for deposit in the Distribution Account not
later than the P&I Advance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur an amount in immediately
available funds equal to the above-described purchase price. In addition, the
Master Servicer shall transfer to the Distribution Account all amounts required
to be transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution. Upon confirmation that such final deposit has been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder, as applicable, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Master
Servicer, the Special Servicer or the Majority Subordinate Certificateholder, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties to the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder (or their respective designees), as applicable.
Any transfer of Mortgage Loans to the Depositor pursuant to this paragraph shall
be on a servicing-released basis.
Notice of any termination shall be given promptly by the Paying
Agent by letter to Certificateholders mailed (a) if such notice is given in
connection with the Master Servicer's, the Special Servicer's or the Majority
Subordinate Certificateholder's purchase of the Mortgage Loans and each REO
Property remaining in REMIC I, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates or (b) otherwise during the month of such final distribution on
or before the Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Paying Agent shall give such notice to the Master
Servicer, the Special Servicer, the Trustee and the Depositor at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (vi) of Section 3.05(b), including any portion thereof that
represents Prepayment Premiums and Yield Maintenance Charges, shall be (i)
deemed distributed in respect of the REMIC I Regular Interests and distributed
to the Class R-I Certificates in respect of the REMIC I Residual Interest in
accordance with Section 4.01(b) and Section 4.01(h) and (ii) distributed to the
REMIC II Certificates in the order of priority set forth in Section 4.01(a) and
Section 4.01(b), in each case, to the extent of remaining available funds.
On or after the Final Distribution Date, upon presentation and
surrender of the Class Z Certificates, the Paying Agent shall distribute to the
Class Z Certificateholders any amount then on deposit in the Additional Interest
Account that was paid on a Mortgage Loan.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate, and
shall deal with all such unclaimed amounts in accordance with applicable law.
The costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder.
After the aggregate Stated Principal Balance of the Mortgage Loans
included in the Trust Fund is less than 10% of the Cut-off Date Balances of the
Mortgage Loans included in the Trust Fund, any Certificateholder or any group of
Certificateholders who own 100% of the Certificates shall have the right to
exchange all of the Certificates held thereby for all of the Mortgage Loans and
each REO Property remaining in the Trust Fund by: (i) obtaining the consent of
100% of the then current Certificateholders and (ii) giving written notice to
all the parties hereto no later than 30 days prior to the anticipated date of
exchange; provided that if the assets remaining in the Trust Fund included an
REO Property relating to an AB Mortgage Loan, the consent of the related
Companion Holder shall be required. In the event that a Certificateholder or
group of Certificateholders shall elect to exchange all of the Certificates held
thereby for all of the Mortgage Loans and each REO Property remaining in REMIC I
in accordance with the preceding sentence, the Certificateholder or group of
Certificateholders, not later than the date on which the final distribution on
the Certificates is to occur, shall deposit in the Certificate Account an amount
in immediately available funds equal to all amounts then due and owing to the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar and/or the REMIC Administrator hereunder. Upon
confirmation that such final deposits have been made and following the surrender
of all the Certificates held by the Certificateholder or group of
Certificateholders on the final Distribution Date, the Custodian, on behalf of
the Trustee, shall release or cause to be released to the Certificateholder or
group of Certificateholders the Mortgage Files for the remaining Mortgage Loans,
and the Trustee shall execute all assignments, endorsements and other
instruments furnished to it by the Certificateholder or group of
Certificateholders as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund. Thereafter, the Trust Fund
and the respective obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator (other than annual tax returns and maintenance of books and
records and the preparation and filing of final tax returns) and the Paying
Agent shall terminate. Such transfers shall be subject to any rights of any
Sub-Servicers to primary service (or to perform select servicing functions with
respect to) the Mortgage Loans. For federal income tax purposes, the
Certificateholder or group of Certificateholders shall be deemed to have
purchased the assets of REMIC I for an amount equal to the unpaid principal
balance, plus accrued unpaid interest, of the Mortgage Loans (other than the
defaulted Mortgage Loans or REO Loans) and the fair market value of any
defaulted Mortgage Loans or REO Property, without duplication of amounts
deposited pursuant to the fourth preceding sentence of this paragraph, and such
amounts shall be deemed to have been paid or distributed in accordance with
Section 4.01(a), Section 4.01(b) and Section 4.01(h).
SECTION 9.02 Additional Termination Requirements.
-----------------------------------
(a) If either (x) the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholders purchase all of the Mortgage Loans and
each REO Property remaining in REMIC I as provided in Section 9.01, or (y) a
Certificateholder or group of Certificateholders exchange 100% of the
Certificates for all of the Mortgage Loans and each REO Property remaining in
REMIC I pursuant to the last paragraph of Section 9.01, the Trust Fund (and,
accordingly, REMIC I and REMIC II) shall be terminated in accordance with the
following additional requirements, unless the Person effecting the purchase
obtains at its own expense and delivers to the Trustee and the Paying Agent and,
in the case of the Depositor, to the Trustee, the Paying Agent and the Master
Servicer, an Opinion of Counsel, addressed to the Trustee and the Paying Agent
and the Master Servicer, to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Paying Agent shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each of REMIC I and REMIC II pursuant to Treasury Regulations Section
1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholders, as applicable,
for cash, or shall effect the exchange described in the last paragraph of
Section 9.01; and
(iii) prior to the end of such ninety (90) day liquidation period
and at the time of the making of the final payment on the Certificates,
the Paying Agent shall distribute or credit, or cause to be distributed or
credited, to the Certificateholders in accordance with Section 9.01 all
cash on hand (other than cash retained to meet claims), and each of REMIC
I and REMIC II shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Paying Agent to specify the 90-day liquidation period for
each of REMIC I and REMIC II, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration.
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(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under applicable state
law. Such election will be made on Form 1066 or other appropriate federal or
state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests and the Regular Certificates are
hereby designated as "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I and REMIC II, respectively. The Class R-I
Certificates and the Class R-II Certificates are hereby designated as the single
class of "residual interests" (within the meaning of Section 860G(a)(2) of the
Code) in REMIC I and REMIC II, respectively. None of the Master Servicer, the
Special Servicer, the Paying Agent or the Trustee shall (to the extent within
its control) permit the creation of any other "interests" in REMIC I and REMIC
II (within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" within the meaning of the REMIC Provisions of
REMIC I Regular Interests and the Regular Certificates (other than the Class
IO-II Certificates) shall be the Rated Final Distribution Date, and the "latest
possible maturity date" of the Class IO-II Certificates shall be the Class IO-II
Termination Date.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, and shall act on behalf of the related REMIC in
relation to any tax matter or controversy and shall represent the related REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority; provided that the REMIC Administrator is
hereby irrevocably appointed to act and shall act as agent and attorney-in-fact
for the Tax Matters Person for each of REMIC I and REMIC II in the performance
of its duties as such.
(e) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to each of REMIC I and REMIC II (but not including any professional fees
or expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund that involve the Internal Revenue Service or state tax
authorities, which extraordinary expenses shall be payable or reimbursable to
the Trustee from the Trust Fund unless otherwise provided in Section 10.01(h) or
10.01(i).
(f) Within 30 days after the Closing Date, the REMIC Administrator
shall obtain taxpayer identification numbers for each of REMIC I and REMIC II by
preparing and filing Internal Revenue Service Forms SS-4 and shall prepare and
file with the Internal Revenue Service Form 8811, "Information Return for Real
Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the REMIC Administrator shall
prepare, cause the Trustee to sign and file all of the other Tax Returns in
respect of REMIC I and REMIC II. The expenses of preparing and filing such
returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to each
of REMIC I and REMIC II as is in its possession and reasonably requested by the
REMIC Administrator to enable it to perform its obligations under this Article.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the REMIC Administrator's request therefor, shall provide in writing
to the REMIC Administrator such information as is reasonably requested by the
REMIC Administrator for tax purposes, as to the valuations and issue prices of
the Certificates, and the REMIC Administrator's duty to perform its reporting
and other tax compliance obligations under this Article X shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the REMIC Administrator to perform
such obligations.
(g) The REMIC Administrator shall perform on behalf of each of REMIC
I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate or agent of a Non-Permitted Transferee, such information as
is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I and REMIC II.
(h) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I and REMIC II as a REMIC under the
REMIC Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer, or the Trustee shall
knowingly take (or cause either REMIC I or REMIC II to take) any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of either REMIC I or REMIC II as a REMIC, or (ii) except as provided in
Section 3.17(a), result in the imposition of a tax upon either REMIC I or REMIC
II (including, but not limited to, the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code or the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code (any such endangerment or imposition or,
except as provided in Section 3.17(a), imposition of a tax, an "Adverse REMIC
Event")), unless the REMIC Administrator has obtained or received an Opinion of
Counsel (at the expense of the party requesting such action or at the expense of
the Trust Fund if the REMIC Administrator seeks to take such action or to
refrain from acting for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse REMIC Event. The
REMIC Administrator shall not take any action or fail to take any action
(whether or not authorized hereunder) as to which the Master Servicer or the
Special Servicer has advised it in writing that either the Master Servicer or
the Special Servicer has received or obtained an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I or REMIC II, or
causing either REMIC I or REMIC II to take any action, that is not expressly
permitted under the terms of this Agreement, the Master Servicer and the Special
Servicer shall consult with the REMIC Administrator or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur.
Neither the Master Servicer nor the Special Servicer shall take any such action
or cause either REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur, and neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instructions of the REMIC Administrator. The REMIC Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Trustee or the
REMIC Administrator. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of each of REMIC I and REMIC II will consist of "qualified mortgages"
as defined in Section 860G(a)(3) of the Code and "permitted investments" as
defined in Section 860G(a)(5) of the Code.
(i) If any tax is imposed on any of REMIC I or REMIC II, including,
without limitation, "prohibited transactions" taxes as defined in Section
860F(a)(2) of the Code, any tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code, any taxes on contributions to REMIC I or
REMIC II after the Startup Day pursuant to Section 860G(d) of the Code, and any
other tax imposed by the Code or any applicable provisions of State or Local Tax
laws (other than any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a)), such tax, together with all incidental costs and
expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the REMIC Administrator, if such tax
arises out of or results from a breach by the REMIC Administrator of any of its
obligations under this Article X provided that no liability shall be imposed
upon the REMIC Administrator under this Clause if another party has
responsibility for payment of such tax under Clauses (iii) or (v) of this
Section; (ii) the Special Servicer, if such tax arises out of or results from a
breach by the Special Servicer of any of its obligations under Article III or
this Article X; (iii) the Master Servicer, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under Article III
or this Article X; (iv) the Trustee or the Paying Agent, respectively, if such
tax arises out of or results from a breach by the Trustee or the Paying Agent,
respectively, of any of its respective obligations under Article IV, Article
VIII or this Article X; (v) the applicable Mortgage Loan Seller, if such tax was
imposed due to the fact that any of the Mortgage Loans did not, at the time of
their transfer to REMIC I, constitute a "qualified mortgage" as defined in
Section 860G(a)(3) of the Code; or (vi) the Trust Fund, excluding the portion
thereof constituting the Grantor Trust, in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust Fund. Any such amounts payable by the
Trust Fund shall be paid by the Paying Agent upon the written direction of the
REMIC Administrator out of amounts on deposit in the Distribution Account in
reduction of the Available Distribution Amount pursuant to Section 3.05(b).
(j) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I and REMIC II on a
calendar year and on an accrual basis.
(k) Following the Startup Day, none of the Trustee, the Master
Servicer, the Paying Agent or the Special Servicer shall accept any
contributions of assets to REMIC I or REMIC II unless it shall have received an
Opinion of Counsel (at the expense of the party seeking to cause such
contribution and in no event at the expense of the Trust Fund, the Trustee or
the Paying Agent) to the effect that the inclusion of such assets in such REMIC
will not cause: (i) such REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(l) None of the Trustee, the Master Servicer, the Paying Agent or
the Special Servicer shall consent to or, to the extent it is within the control
of such Person, permit: (i) the sale or disposition of any of the Mortgage Loans
(except in connection with (A) the default or foreclosure of a Mortgage Loan,
including, but not limited to, the sale or other disposition of a Mortgaged
Property acquired by deed in lieu of foreclosure, (B) the bankruptcy of REMIC I
or REMIC II, (C) the termination of REMIC I and REMIC II pursuant to Article IX
of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or as
contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Certificate Account, the Distribution
Account or the REO Account for gain; or (iii) the acquisition of any assets on
behalf of REMIC I or REMIC II (other than (1) a Mortgaged Property acquired
through foreclosure, deed in lieu of foreclosure or otherwise in respect of a
Defaulted Mortgage Loan, (2) a Qualified Substitute Mortgage Loan pursuant to
Article II hereof and (3) Permitted Investments acquired in connection with the
investment of funds in the Certificate Account, the Distribution Account or the
REO Account); in any event unless it has received an Opinion of Counsel (at the
expense of the party seeking to cause such sale, disposition, or acquisition but
in no event at the expense of the Trust Fund, the Trustee or the Paying Agent)
to the effect that such sale, disposition, or acquisition will not cause: (x)
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (y) the imposition of any tax on REMIC I or
REMIC II under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(m) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer, the Paying Agent and the Special Servicer shall enter into any
arrangement by which REMIC I or REMIC II will receive a fee or other
compensation for services nor permit REMIC I or REMIC II to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
SECTION 10.02 Grantor Trust Administration.
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(a) The REMIC Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and shall treat
the Additional Interest, the Additional Interest Account and amounts held from
time to time in the Additional Interest Account that represent Additional
Interest as separate assets of the Grantor Trust, and not of REMIC I or REMIC
II, as permitted by Treasury Regulations Section 1.860G-2(i)(1). The Class Z
Certificates are hereby designated as representing an undivided beneficial
interest in Additional Interest payable on any Mortgage Loans and proceeds
thereof.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to the Grantor Trust (but not including any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect to
the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, cause the Trustee to sign
and file when due all of the Tax Returns in respect of the Grantor Trust. The
expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the REMIC Administrator or its
designee such information with respect to the Grantor Trust as is in its
possession and reasonably requested by the REMIC Administrator to enable it to
perform its obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within ten days following the REMIC
Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, and the REMIC Administrator's duty to perform
its reporting and other tax compliance obligations under this Section 10.02
shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the REMIC
Administrator to perform such obligations.
(d) The REMIC Administrator shall furnish or cause to be furnished
to the Class Z Certificateholders on the cash or accrual method of accounting,
as applicable, such information as to their respective portions of the income
and expenses of the Grantor Trust as may be required under the Code, and shall
perform on behalf of the Grantor Trust all reporting and other tax compliance
duties that are required in respect thereof under the Code, the Grantor Trust
Provisions or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority.
(e) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions (any
such endangerment of grantor trust status, an "Adverse Grantor Trust Event"),
unless the REMIC Administrator has obtained or received an Opinion of Counsel
(at the expense of the party requesting such action or at the expense of the
Trust Fund if the REMIC Administrator seeks to take such action or to refrain
from taking any action for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the REMIC Administrator
has advised it in writing that the REMIC Administrator has received or obtained
an Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to the Grantor Trust, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. Neither the Master Servicer
nor the Special Servicer shall have any liability hereunder for any action taken
by it in accordance with the written instructions of the REMIC Administrator.
The REMIC Administrator may consult with counsel to make such written advice,
and the cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the cost or expense of
the Trust Fund, the REMIC Administrator or the Trustee. Under no circumstances
may the REMIC Administrator vary the assets of the Grantor Trust so as to take
advantage of variations in the market so as to improve the rate of return of
Holders of the Class Z Certificates.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee or the Paying Agent, respectively, if such
tax arises out of or results from a breach by the Trustee or the Paying Agent,
respectively, of any of its obligations under Article IV, Article VIII or this
Section 10.02; or (v) the portion of the Trust Fund constituting the Grantor
Trust in all other instances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
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(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer, the
Paying Agent and the Trustee, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the provisions
hereof, (iv) to relax or eliminate any requirement hereunder imposed by the
REMIC Provisions if the REMIC Provisions are amended or clarified such that any
such requirement may be relaxed or eliminated, or (v) if such amendment, as
evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) delivered to the
Master Servicer, the Special Servicer, the Paying Agent and the Trustee, is
advisable or reasonably necessary to comply with any requirements imposed by the
Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to either
REMIC I or REMIC II created hereunder at least from the effective date of such
amendment, or would be necessary to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of any such REMIC; provided that
such action (except any amendment described in clause (v) above) shall not, as
evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) obtained by or
delivered to the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee, adversely affect in any material respect the interests of any
Certificateholder; and provided further that the Master Servicer, the Special
Servicer, the Paying Agent and the Trustee shall have first obtained from each
Rating Agency written confirmation that such amendment will not result in the
qualification, downgrade or withdrawal of the rating on any Class of
Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer, the
Paying Agent and the Trustee with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans that are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) as evidenced by an Opinion of Counsel obtained by or delivered
to the Master Servicer, the Special Servicer, the Paying Agent and the Trustee,
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i) without the
consent of the Holders of all Certificates of such Class, (iii) modify the
provisions of this Section 11.01 without the consent of the Holders of all
Certificates then outstanding, (iv) modify the provisions of Section 3.20
without the consent of the Holders of Certificates entitled to all of the Voting
Rights or (v) modify the definition of Servicing Standard or the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement, for purposes
of the giving or withholding of consents pursuant to this Section 11.01,
Certificates registered in the name of the Depositor or any Affiliate of the
Depositor shall be entitled to the same Voting Rights with respect to matters
described above as they would if any other Person held such Certificates, so
long as neither the Depositor nor any of its Affiliates is performing servicing
duties with respect to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the Paying Agent shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel (at the expense of the Trust Fund, in the case of any amendment
requested by the Master Servicer or Special Servicer that protects or is in
furtherance of the interests of the Certificateholders, and, otherwise, at the
expense of the party seeking such amendment) to the effect that (i) such
amendment or the exercise of any power granted to the Trustee, the Master
Servicer, the Paying Agent or the Special Servicer in accordance with such
amendment will not result in the imposition of a tax on either REMIC I or REMIC
II pursuant to the REMIC Provisions or on the Grantor Trust or cause either
REMIC I or REMIC II to fail to qualify as a REMIC or the Grantor Trust to fail
to qualify as a grantor trust at any time that any Certificates are outstanding
and (ii) such amendment complies with the provisions of this Section 10.01.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) Each of the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee may but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer, the Paying
Agent or the Trustee requests any amendment of this Agreement that protects or
is in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
11.01(a) or (c) shall be payable out of the Certificate Account or the
Distribution Account pursuant to Section 3.05.
SECTION 11.02 Recordation of Agreement; Counterparts.
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(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Certificate Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as hereinbefore provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates entitled to at
least 25% of the Voting Rights shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.04 Governing Law.
-------------
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05 Notices.
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Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, First Union
Commercial Mortgage Securities, Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Director, facsimile number:
000-000-0000; (ii) in the case of the Master Servicer, First Union National
Bank, NC 1075, 0000 Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
Attention: First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002-C1, facsimile number:
000-000-0000 (with a copy to Xxxx Xxxxxxxx, Wachovia Corporation, 000 Xxxxxxx
Xxxxxx, XX-0000, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, facsimile
number: 704-383-0353); (iii) in the case of the Special Servicer, GMAC
Commercial Mortgage Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Bieber (with a copy to the General Counsel at
such address) facsimile number: 415-391-2949; (iv) in the case of the Trustee,
Xxxxx Fargo Bank Minnesota, N.A., Corporate Trust Department, 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services
(CMBS) First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002-C1, facsimile number 000-000-0000; (v) in
the case of the Paying Agent, LaSalle Bank National Association, 000 X. XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services Group-First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-C1, facsimile number
000-000-0000; (vi) in the case of the Underwriters to each of First Union
Securities, Inc., First Union Capital Markets Group, Xxx Xxxxx Xxxxx Xxxxxx,
XX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xx. Xxxxxxx X. Xxxxxx,
facsimile number: 000-000-0000, Deutsche Banc Alex. Xxxxx Inc., 1301 Avenue of
the Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx,
facsimile number 000-000-0000; and ABN AMRO Incorporated, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx, facsimile number
000-000-0000; (vii) in the case of the Rating Agencies, (A) Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number
(000) 000-0000; and (B) S&P Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 Attention: CMBS Surveillance Group, facsimile number
000-000-0000; (viii) in the case of the initial Controlling Class
Representative, Allied Capital Corporation, 0000 Xxxxxxxxxxxx Xxxxxx, XX 0xx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxxxx, facsimile number (202)
659-2053, or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
SECTION 11.06 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
----------------------------
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets constituting the Trust
Fund.
SECTION 11.08 Xxxxxx Act.
----------
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09 Successors and Assigns; Beneficiaries.
-------------------------------------
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary hereof without its consent. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10 Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11 Notices to Rating Agencies.
--------------------------
(a) The Paying Agent shall promptly provide notice to each Rating
Agency and the Controlling Class Representative with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Trustee, the Paying
Agent, the Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by either of the Mortgage Loan
Sellers pursuant to the First Union Mortgage Loan Purchase Agreement, the
GACC Mortgage Loan Purchase Agreement or the LaSalle Mortgage Loan
Purchase Agreement;
(v) any change in the location of the Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Certificate Account.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative with respect to a non-performing or Defaulted
Mortgage Loan such information as the Rating Agency or Controlling Class
Representative shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iii) any Officers' Certificate delivered to the Trustee pursuant to
Section 4.03(c) or 3.08; and
(iv) each of the reports described in Section 3.12(a) and the
statements and reports described in Sections 3.12(b), 3.12(c) and 3.12(d).
(e) The Paying Agent shall (i) make available to each Rating Agency
and the Controlling Class Representative, upon reasonable notice, the items
described in Section 3.15(a) and (ii) promptly deliver to each Rating Agency and
the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Paying Agent, the Master Servicer and
the Special Servicer shall provide to each Rating Agency such other information
with respect to the Mortgage Loans and the Certificates, to the extent such
party possesses such information, as such Rating Agency shall reasonably
request.
(g) Notwithstanding any provision herein to the contrary each of the
Master Servicer, the Special Servicer, the Paying Agent or the Trustee shall
deliver to any Underwriter any report prepared by such party hereunder upon
request.
SECTION 11.12 Complete Agreement.
------------------
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
Depositor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
Master Servicer
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
By: /s/ Xxxxx Bieber
--------------------------------------
Name: Xxxxx Bieber
Title: Senior Vice President
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
A-1 Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class A-1 Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [___________] OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN
INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE AND THE CLASS A-2 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class A-1 Certificate (obtained by dividing the
principal amount of this Class A-1 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-1 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-1 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-1 Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-1 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-1
Certificates are exchangeable for new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class A-1
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.\
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:
--------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:
--------------------------------------
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
A-2 Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class A-2 Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE AND THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class A-2 Certificate (obtained by dividing the
principal amount of this Class A-2 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-2 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-2 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-2 Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-2 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-2
Certificates are exchangeable for new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class A-2
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS IO-I CERTIFICATE
CLASS IO-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Aggregate Certificate Notional amount
of all Class IO-I Certificates as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of [______] Class IO-I Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO-I
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES AS SET FORTH IN THE AGREEMENT, THE OUTSTANDING
NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class IO-I Certificate in that certain beneficial
ownership interest evidenced by all the Class IO-I Certificates in the Trust
Fund created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (herein called the "Master Servicer",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (herein called the "Special Servicer", which term includes
any successor entity under the Agreement), LaSalle Bank National Association
(herein called the "Paying Agent", which term includes any successor entity
under the Agreement), and Xxxxx Fargo Bank Minnesota, N.A. (herein called the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO-I Certificates on the applicable Distribution
Date pursuant to the Agreement. The Pass-Through Rate applicable to each
Component of the Class IO-I Certificates for each Distribution Date is as
provided in the Agreement. All distributions made under the Agreement on the
Class IO-I Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO-I Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO-I Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
IO-I Certificates are exchangeable for new Class IO-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class IO-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-I Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class IO-I
Certificate without registration or qualification. Any Class IO-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-I Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class IO-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO-I
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class IO-I
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-I Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS IO-II CERTIFICATE
CLASS IO-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Aggregate Certificate Notional amount
of all Class IO-II Certificates as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of [______] Class IO-II Certificate as of the
Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO-II
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class IO-II Certificate in that certain beneficial
ownership interest evidenced by all the Class IO-II Certificates in the Trust
Fund created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (herein called the "Master Servicer",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation (herein called the "Special Servicer", which term includes
any successor entity under the Agreement), LaSalle Bank National Association
(herein called the "Paying Agent", which term includes any successor entity
under the Agreement), and Xxxxx Fargo Bank Minnesota, N.A. (herein called the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO-II Certificates on the applicable Distribution
Date pursuant to the Agreement. The Pass-Through Rate applicable to each
Component of the Class IO-II Certificates for each Distribution Date will be as
provided in the Agreement. All distributions made under the Agreement on the
Class IO-II Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO-II
Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class IO-II Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
IO-II Certificates are exchangeable for new Class IO-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class IO-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class IO-II
Certificate without registration or qualification. Any Class IO-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class IO-II Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO-II
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class IO-II
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-II Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
B Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class B Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES AND THE CLASS IO-II CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
AND THE CLASS A-2 CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class B Certificate (obtained by dividing the
principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class B Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class B Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class B Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class B
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class B Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
C Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class C Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES AND THE
CLASS B CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class C Certificate (obtained by dividing the
principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class C Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class C Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class C Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class C Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class C
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class C Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
D Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class D Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES AND THE CLASS C CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS C
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E, CLASS
F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class D Certificate (obtained by dividing the
principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class D Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class D Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class D Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class D Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class D
Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class D
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Special Servicer or the Majority Subordinate Certificateholder
at a price determined as provided in the Agreement of all Mortgage Loans and
each REO Property remaining in the Trust Fund. The Agreement permits, but does
not require, the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder to purchase from the Trust Fund all Mortgage Loans
and each REO Property remaining therein. The exercise of such right will effect
early retirement of the Class D Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
E Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class E Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES AND THE CLASS D CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES
AND THE CLASS D CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class E Certificate (obtained by dividing the
principal amount of this Class E Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class E Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class E Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class E Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class E Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class E Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class E Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class E Certificate without
registration or qualification. Any Class E Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class E Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class E
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class E Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-9
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
F Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class F Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES AND
CLASS E CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES AND CLASS E CERTIFICATES OF THE SAME SERIES ARE REDUCED
TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M,
CLASS N AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class F Certificate (obtained by dividing the
principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class F Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class F Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class F Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class F Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class F Certificate without
registration or qualification. Any Class F Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class F Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class F
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class F Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
G Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class G Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES AND THE CLASS F CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class G Certificate (obtained by dividing the
principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class G Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class G Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class G Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class G
Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class G Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class G Certificate without
registration or qualification. Any Class G Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class G Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class G Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
H Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class H Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND
THE CLASS G CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
J, CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class H Certificate (obtained by dividing the
principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class H Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class H Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class H Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class H Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class H Certificate without
registration or qualification. Any Class H Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class H Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class H Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-12
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
J Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class J Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE
CLASS H CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES AND THE CLASS H CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K, CLASS L, CLASS M, CLASS N AND
CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class J Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class J Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class J Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class J
Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class J Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class J Certificate without
registration or qualification. Any Class J Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class J Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class J Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-13
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class
K Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class K Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS L, CLASS M, CLASS N AND
CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class K Certificate (obtained by dividing the
principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class K Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class K Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class K Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class K
Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class K Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class K Certificate without
registration or qualification. Any Class K Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class K Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class K Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class K
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class K Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-14
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class L
Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class L Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES AND THE CLASS K CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES AND
THE CLASS K CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
M, CLASS N AND CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class L Certificate (obtained by dividing the
principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class L Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class L Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class L Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class L
Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class L Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class L Certificate without
registration or qualification. Any Class L Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class L Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class L Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class L
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class L Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date as specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-15
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class M
Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class M Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K AND THE CLASS L
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES AND THE CLASS L CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS N AND CLASS O CERTIFICATES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class M Certificate (obtained by dividing the
principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class M Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class M Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class M Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class M
Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class M Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class M Certificate without
registration or qualification. Any Class M Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class M Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class M Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class M
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class M Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-16
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class N
Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class N Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS O CERTIFICATES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class N Certificate (obtained by dividing the
principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class N Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class N Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class N Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class N
Certificates are exchangeable for new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class N Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class N Certificate without
registration or qualification. Any Class N Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class N Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class N Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class N
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class N Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-17
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Pass-Through Rate: [__]% per annum Class Principal Balance of the Class O
Certificates as of the Closing
Date: $[__]
--------------------------------------------------------------------------------
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of [______] of this Class O Certificate as of
the Closing Date: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. [__]
--------------------------------------------------------------------------------
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [________] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [________] OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [________], HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-I CERTIFICATES, THE CLASS IO-II CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES, THE CLASS M CERTIFICATES AND
THE CLASS N CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Class O Certificate (obtained by dividing the
principal amount of this Class O Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class O Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class O Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class O Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class O Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class O Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class O
Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class O Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class O Certificate without
registration or qualification. Any Class O Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class O Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class O Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class O
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class O Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-18
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of [______] this Class R-1 Certificate: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO-I, CLASS
IO-II, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME SERIES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS
ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF
THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [______________________] is the registered owner of the
Percentage Interest evidenced by this Class R-I Certificate (as specified above)
in that certain beneficial ownership interest evidenced by all the Class R-I
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount, if any, required to be
distributed to the Holders of the Class R-I Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Class R-I Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-I Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class R-I Certificate without
registration or qualification. Any Class R-I Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class R-I Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of this Class R-I Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-I Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-I Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
This Certificate represents an interest in the "residual interest" in REMIC
as defined in the Agreement. Each Person who has or who acquires any Ownership
Interest in this Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Paying Agent, under clause (ii)(A) of such
Section 5.02(d) to deliver payments to a Person other than such Person and to
have irrevocably authorized the Certificate Registrar under clause (ii)(B) of
such Section 5.02(d) to negotiate the terms of any mandatory sale and to execute
all instruments of Transfer and to do all other things necessary in connection
with any such sale. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Master Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the Transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit I-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. The proposed
Transferor must also state in the Transfer Affidavit and Agreement that (A) it
has historically paid its debts as they have come due and intends to continue to
pay its debts as they come due in the future, (B) it understands that it may
incur tax liabilities with respect to this certificate in excess of cash flows
generated thereby, (C)it intends to pay any taxes associated with holding this
certificate as they become due, and (D) it will not transfer this certificate to
any person or entity that does not provide a similar affidavit. Any purported
transfer to a disqualified organization or other person that is not a permitted
transferee or otherwise in violation of these restrictions shall be absolutely
null and void and shall vest no rights in any purported transferee. If this
certificate represents a "non-economic residual interest", as defined in
Treasury Regulations Section 1.860E-1(c), transfers of this certificate may be
disregarded for federal income tax purposes. In order to satisfy a regulatory
safe harbor under which such transfers will not be disregarded, the transferor
may be required, among other things, to satisfy itself as to the financial
condition of the proposed transferee and either to transfer at a minimum price
or to an eligible transferee as specified in regulations.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as two REMICs or (y) be subject
to an entity-level tax caused by the transfer of this Class R-I Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-I Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization", a "Plan" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States or a possession thereof, any State
or any political subdivision thereof, or any agency or instrumentality of any of
the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for the FHLMC, a majority of its
board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization, or any agency or instrumentality
of either of the foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the Paying Agent or Certificate
Registrar based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-I Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R-I Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation or partnership, including any entity treated as a corporation or a
partnership for United States federal income tax purposes, created or organized
in, or under the laws of, the United States, any state or the District of
Columbia (unless, in the case of a partnership, Treasury regulations are enacted
that provide otherwise), an estate whose income is includable in gross income
for United States federal income tax purposes regardless of its source, or a
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
Persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-1 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-19
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of [______] this Class R-II Certificate: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO-I, CLASS
IO-II, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N AND CLASS O CERTIFICATES OF THE SAME SERIES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS
ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF
THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [__________________________] is the registered owner of
the Percentage Interest evidenced by this Class R-II Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-II Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount, if any, required to be
distributed to the Holders of the Class R-II Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Class R-II Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-II
Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Class R-II Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-II Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-II Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
This Certificate represents an interest in the "residual interest" in REMIC
II, as defined in the Agreement. Each Person who has or who acquires any
Ownership Interest in this Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
provisions of Section 5.02(d) of the Agreement and, if any purported Transferee
shall become a Holder of this Certificate in violation of the provisions of such
Section 5.02(d), to have irrevocably authorized the Paying Agent, under clause
(ii)(A) of such Section 5.02(d) to deliver payments to a Person other than such
Person and to have irrevocably authorized the Certificate Registrar under clause
(ii)(B) of such Section 5.02(d) to negotiate the terms of any mandatory sale and
to execute all instruments of Transfer and to do all other things necessary in
connection with any such sale. Each Person holding or acquiring any Ownership
Interest in this Certificate must be a Permitted Transferee and shall promptly
notify the Master Servicer, the Paying Agent and the Certificate Registrar of
any change or impending change in its status as a Permitted Transferee. In
connection with any proposed Transfer of any Ownership Interest in this
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of this Certificate until its receipt of, an affidavit
and agreement substantially in the form attached as Exhibit I-1 to the Agreement
(a "Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in this Certificate as a
nominee, trustee or agent for any Person that is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in this Certificate, it
will endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if a Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee shall be effected. The proposed Transferor must also state in the
Transfer Affidavit and Agreement that (A) it has historically paid its debts as
they have come due and intends to continue to pay its debts as they come due in
the future, (B) it understands that it may incur tax liabilities with respect to
this certificate in excess of cash flows generated thereby, (C)it intends to pay
any taxes associated with holding this certificate as they become due, and (D)
it will not transfer this certificate to any person or entity that does not
provide a similar affidavit. Any purported transfer to a disqualified
organization or other person that is not a permitted transferee or otherwise in
violation of these restrictions shall be absolutely null and void and shall vest
no rights in any purported transferee. If this certificate represents a
"non-economic residual interest", as defined in Treasury Regulations Section
1.860E-1(c), transfers of this certificate may be disregarded for federal income
tax purposes. In order to satisfy a regulatory safe harbor under which such
transfers will not be disregarded, the transferor may be required, among other
things, to satisfy itself as to the financial condition of the proposed
transferee and either to transfer at a minimum price or to an eligible
transferee as specified in regulations.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as two REMICs or (y) be subject
to an entity-level tax caused by the Transfer of any Class R-II Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-II Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization", a "Plan" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States or a possession thereof, any State
or any political subdivision thereof, or any agency or instrumentality of any of
the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for the FHLMC, a majority of its
board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization, or any agency or instrumentality
of either of the foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
and (v) any other Person so designated by the Paying Agent or Certificate
Registrar based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-II Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R-II Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation or partnership, including any entity treated as a corporation or a
partnership for United States federal income tax purposes, created or organized
in, or under the laws of, the United States, any state or the District of
Columbia (unless, in the case of a partnership, Treasury regulations are enacted
that provide otherwise), an estate whose income from is includable in gross
income for United States federal income tax purposes regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-II
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-20
FORM OF CLASS Z CERTIFICATE
CLASS Z COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST
--------------------------------------------------------------------------------
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of [______] this Class Z Certificate: $[__]
--------------------------------------------------------------------------------
Closing Date: [_____] Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $[__]
--------------------------------------------------------------------------------
First Distribution Date: [______]
--------------------------------------------------------------------------------
Master Servicer: First Union National Trustee: Xxxxx Fargo Bank Minnesota,
Bank N.A.
--------------------------------------------------------------------------------
Special Servicer: GMAC Commercial Paying Agent: LaSalle Bank National
Mortgage Corporation Association
--------------------------------------------------------------------------------
Certificate No. 1
--------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF ADDITIONAL INTEREST AS SET FORTH IN THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., XXXXX FARGO BANK MINNESOTA, N.A., LASALLE
BANK NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that [__________________________] is the registered owner of
the Percentage Interest evidenced by this Class Z Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
Z Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Paying Agent",
which term includes any successor entity under the Agreement), and Xxxxx Fargo
Bank Minnesota, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
12th day of each month or, if such 12th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"). With respect to each
Distribution Date, the Determination Date is the fourth Business Day prior to
such Distribution Date (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class Z Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class Z Certificates will be made by the Paying Agent, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries of Additional Interest payable on First Union
Mortgage Loans, all as more specifically set forth herein and in the Agreement.
The Class Z Certificates are issuable in fully registered form only without
coupons in minimum denominations representing Percentage Interests specified in
the Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Class Z Certificates are exchangeable for new Class Z
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
Any distribution to the Holder of this Certificate is binding on such
Holder and all future Holders of this Certificate and any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class Z Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class Z Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class Z Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class Z Certificate without
registration or qualification. Any Class Z Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class Z Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class Z Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class Z
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of [________] or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier to occur of (i) the
final payment (or any advance with respect thereto) or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder to purchase from the
Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class Z Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder, or any collective group
of Certificateholders, of all of the then outstanding Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund may be
made: (i) upon the consent of 100% of the then current Certificateholders and
(ii) after the aggregate principal balance of the Mortgage Loans included in the
Trust Fund is less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of the
Trust Fund (or designated portions thereof) as consisting of two separate REMICs
and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: [DATE]
LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z Certificates referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
__________________________________________________.
Dated: _________________________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _____________________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to __________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN
NUMBER MORTGAGE LOAN SELLER PROPERTY NAME
------------------------------------------------------------------------------------------------------------------------------------
1 Deutsche Bank Wilshire Union Center
2 Deutsche Bank The Xxxxxxxxx
0 Xxxxxxxx 00 Xxxxxxx Xxxxxx
4 Wachovia U-Haul Pool 6
4.01 Wachovia U-Haul Ctr Alief
4.02 Wachovia U-Haul Bronx Park
4.03 Wachovia U-Haul Center Denton
4.04 Wachovia U-Haul Center Kyrene Road
4.05 Wachovia U-Haul Center Los Xxxx
4.06 Wachovia U-Haul Center Miramar
4.07 Wachovia U-Haul Central Sq
4.08 Wachovia U-Haul Cinnaminson
4.09 Wachovia U-Haul Ctr Dbl Diamond Ranch
4.10 Wachovia U-Haul Center S Havana
4.11 Wachovia U-Haul MacArthur Road
4.12 Wachovia U-Haul N Broadway
4.13 Wachovia U-Haul Palm Springs
4.14 Xxxxxxxx X-Xxxx Xxx Xxxx Xxxx
0 Xxxxxxxx Transpark Business Center
6 Wachovia Madison Place
7 Wachovia Thunderbird Ranch
8 Wachovia University Commons
9 Wachovia Waterford Apartments
10 Wachovia Town Square Shopping Center
00 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx
00 XxXxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
00 XxXxxxx 00 Xxxxxxx Xx.
14 Wachovia Xxxxxxxxxxx 222 Apartments
15 Deutsche Bank Doubletree Guest Suites Fort Lauderdale, Florida
16 XxXxxxx Xxx Arbor Properties
16.01 LaSalle The Lion
16.02 LaSalle The Lodge
16.03 LaSalle The Abby
16.04 LaSalle 344 South Division
16.05 LaSalle 000 Xxxx Xxxxxxxx
16.06 LaSalle 000 Xxxx Xxxxxxx Xx
16.07 LaSalle 0000 Xxxxxxx Xxx
16.08 LaSalle 000 Xxxxxxx Xx
16.09 LaSalle The Forum
16.10 LaSalle The Algonquin
16.11 LaSalle The Xxxx
17 Deutsche Bank Shoppes at Xxxxxx / Pier I Shopping Center
17.01 Deutsche Bank Shoppes at Vestal
17.02 Deutsche Bank Pier One Shopping Center
18 Wachovia Shorewood Crossing
19 LaSalle Central Medical
00 XxXxxxx Xxxxx Xxxxx Xxxxxxx
21 Wachovia River Oaks Shopping Center
22 Deutsche Bank St. Xxxxx Apartments
23 Wachovia Montserrat Apartments
24 Wachovia 410 - 540 E Xxxxxx
00 Xxxxxxxx Bank Northwood Apartments
26 LaSalle Parkside Village Apts
27 Wachovia Thousand Oaks Corporate Center
28 LaSalle BelAire Atrium I&II
29 LaSalle Raymour & Xxxxxxxx
00 Xxxxxxxx Xxxx Xxxxxxxx Xxxx of Commerce
31 Wachovia Red Rock Commercial Center
32 Wachovia Western Village Shopping Center
00 XxXxxxx Xxxxx Xxxxx MHP
34 LaSalle Addison Com Center
35 Wachovia Providence Park Apartments
36 Wachovia Homewood Suites - Dulles
37 LaSalle Northland - Xxxxx Apt Portfolio
37.01 LaSalle Northland Village
37.02 XxXxxxx Xxxxx Terrace
38 Wachovia Orangefair Village Apartments
39 Wachovia Lathrop Industrial Park
40 Wachovia Escondido Commerce Center
41 LaSalle Chartre Oaks - Ridge Apartments
41.01 LaSalle Chartre Oaks
41.02 LaSalle Chartre Ridge
42 LaSalle Rainbow Tower
43 Deutsche Bank Peninsula Portfolio
43.01 Deutsche Bank Peninsula Business Center I & II
43.02 Deutsche Bank Peninsula Oyster Point
44 Wachovia Trailside Apartments
45 Deutsche Bank Whiteville Shopping Center
00 XxXxxxx Xxxxxxxxx Apartments
47 Wachovia Cha Cha Cha Apartments
48 LaSalle Meadowood Apts
49 LaSalle Crestview Apartments
50 Deutsche Bank Cheyenne Plaza
51 Deutsche Bank Pavilion Centre
52 LaSalle Imperial House Apartments
53 Wachovia Homewood Suites - Portland
00 Xxxxxxxx Xxxxxxxx Xxxxxx - Xx. Xxxxx
55 LaSalle Xxxxxxxx Xxxxx Apartments
56 Wachovia Xxxxxx Xxxx Apartments
57 Deutsche Bank Green River Center
58 Deutsche Bank Herndon Center V
59 Wachovia Amaretto at North Tampa
60 Wachovia West Indian Hills-PH III
61 Wachovia Lake in the Xxxxx Apartments
62 Wachovia Radisson Summit Hill
63 Wachovia St. Mary's Shopping Center
64 LaSalle Walgreens #2 Colorado Springs
65 LaSalle Walgreens Pueblo
00 Xxxxxxxx Xxxxxx & Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxxxxx Shopping Center
00 XxXxxxx Xxxxxx Xxxxxx I
00 XxXxxxx Xxxxxx Xxxxxxxx'x (X. Xxxxxx)
70 Deutsche Bank Business Village West Condominiums
71 LaSalle Youngstown Apartments
72 LaSalle Walgreens Colorado Springs
73 LaSalle 399 Perry
74 Wachovia Chelsea on Xxxxx Apartments
75 Wachovia PerkinElmer, Inc. - Beltsville, MD
76 LaSalle 000 X Xxxxxx
00 Xxxxxxxx Xxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxx X & III
78 Wachovia Pier 1 Imports
79 LaSalle Walgreens Milwaukee & Dundee Road
00 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxx Bon Villa Apartments
82 LaSalle Locust Grove MHP
83 LaSalle The Valley MHP
84 Wachovia Xxxxxxxxx Alley
85 LaSalle Xxxxxxxx Crossing Shopping Center
86 Xxxxxxxx Xxxxxxx Xxxxxxx
00 Xxxxxxxx Xxxx Xxxxxxx Shopping Center
88 Wachovia CVS - Graham, NC
89 LaSalle The Hills MHP
90 LaSalle TVO Victoria aka The Villas
00 XxXxxxx Xxxxx Xxxxx Xxxxxxxxxx
00 XxXxxxx CVS Huntsville #2
93 Deutsche Bank Xxxxxxxxx Apartments
94 LaSalle CVS Cohoes
95 Wachovia Xxxxxxxx Commerce Center
96 Wachovia CVS - Knox, IN
97 Wachovia PerkinElmer, Inc. - Daytona Beach, FL
98 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx
00 XxXxxxx 000 Xxxxx Xxxxxxxx Xxx
100 LaSalle 0000 X Xxxxxxxxx
000 XxXxxxx 0000 X Xxxxxxxx Xxx
102 Xxxxxxxx Xxx Xxxxx Xxxxx Xxxxxxxxxx
000 XxXxxxx 000 X Xxxxx Xxxxx
104 Wachovia Steeple's Xxxx at Louisiana Tech Apartments Phase II
105 LaSalle Campus Edge Apts
106 Wachovia PerkinElmer, Inc. - Xxxxxx, NY
TABLE CONTINUED
MORTGAGE LOAN
NUMBER STREET ADDRESS PROPERTY CITY PROPERTY STATE
------------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX
2 0000-0000 Xxxxxxx Xxxxxx Xxxxxx Xxxxx XX
3 00 Xxxxxxx Xxxxxx Xxx Xxxx XX
4 Various Various Various
4.01 00000 Xxxxxxxx Xxxx. Xxxxxxx XX
4.02 0000 Xxxxx Xxxxxx Xx. Xxxxx XX
4.03 000 Xxxxx X-00 X Xxxxxx XX
4.04 0000 X. Xxxxxxxx Xxxx. Xxxxxxxx XX
4.05 0000 Xxx Xxxx Xxxx. Xxxxx XX
4.06 0000 Xxxxxx Xxxx Xxx Xxxxx XX
4.07 000 Xxxx Xxxxxx Xxxxxxxxx XX
4.08 0000 Xxxxx 000 Xxxxxxxxxxx XX
4.09 00000 X. Xxxxxxxx Xx. Xxxx XX
4.10 000 X. Xxxxxx Xxxxxx XX
4.11 0000 XxxXxxxxx Xxxx Xxxxxxxxx XX
4.12 000 X. Xxxxxxxx Xxxx Xxxxxxxxxx XX
4.13 00000 Xxxxx Xxxx Xxxxxxxxx Xxxx XX
4.14 00 Xxxx 0000 Xxxxx Xxxx Xxxx Xxxx XX
5 2910-3072 Inland Empire Blvd. Ontario CA
6 3200 Block of Xxxx X. Road Madison Heights MI
7 0000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxxx XX
8 0000 Xxxxxx Xxxx Xxxx Xxxxx XX
9 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX
10 110 - 000 Xxxxxxxxxxxx Xxxx Schererville IN
11 0000 Xxxxxxxxxx Xxxxx Xxxxxx XX
12 000 Xxxxxxxxxx Xxxxxx Xxxxxx XX
13 00 Xxxxxxx Xxxx Xxxxxxxxx XX
14 000 Xxxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX
15 0000 Xxxx Xxxxxxx Xxxx Xxxx Xxxxxxxxxx XX
16 Various Ann Arbor MI
16.01 000 Xxxxxx Xxxxxx Xxx Xxxxx XX
16.02 0000 Xxxxxx Xxxxxx Xxx Xxxxx XX
16.03 000 Xxxxxx Xxxxxx Xxx Xxxxx XX
16.04 000 Xxxxx Xxxxxxxx Xxx Xxxxx XX
16.05 000 Xxxx Xxxxxxxx Xxx Xxxxx XX
16.06 000 Xxxx Xxxxxxx Xx Xxx Xxxxx XX
16.07 0000 Xxxxxxx Xxx Xxx Xxxxx XX
16.08 000 Xxxxxxx Xx Xxx Xxxxx XX
16.09 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxx XX
16.10 0000 Xxxxx Xxxxxxxxxx Xxx Xxxxx XX
16.11 0000 Xxxxxx Xxxxxx Xxx Xxxxx XX
17 Various Vestal NY
17.01 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxx XX
17.02 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxx XX
18 922 - 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
19 000 Xxxxxx Xxxxxx Xx. Xxxx XX
20 0000 Xxxxx Xxxxxxx Xxxx Xxxxx XX
21 00000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX
22 0000 Xxxx Xxxx Xxxxxx Xxx Xxxxx XX
23 0000 Xxxxx Xxx Xxxxx XX
24 410 - 000 X Xxxxxx Xxxxxx XX
25 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxx XX
26 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx XX
27 00-000 X. Xxxxxxxx Xxxx Xxxx. Xxxxxxxx Xxxx XX
28 5909 & 0000 Xxxx Xxxx Xxxxx Xxxxxxx XX
29 000 Xxx Xxxx Xxxx Xxxxxxxx XX
30 12000-13000 Miramar Parkway Miramar FL
31 1311 & 0000 Xxxx Xxxxx Xxxx Xxx Xxxxx XX
32 000-000 X. Xxxx Xxxxxx Xxxxxx XX
33 0000 Xxx Xxxx Xxxx Xxxxxxx XX
34 00000 Xxxx Xxxxx Xxxxx Xxxxxxx XX
35 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX
36 0000 Xxx Xxxx Xx. Xxxxxxx XX
37 Various Sacramento CA
37.01 0000 Xxxxxx Xxx Xxxxxxxxxx XX
37.02 0000 Xxxxxx Xxx Xxxxxxxxxx XX
38 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx XX
39 0000 Xxxxxxxx Xxx Xxxxxxx XX
40 0000-0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX
41 Various Tallahassee FL
41.01 0000 Xxxxxxxx Xxx Xxxxxxxxxxx XX
41.02 000 Xxxxx Xxx Xxxxxxxxxxx XX
42 0000 Xxxxxxx Xxxx Xxxxxx Xxxx XX
43 Various Newport News VA
43.01 11751 & 00000 Xxxx Xxxxxxx Xxxxx Xxxxxxx Xxxx XX
43.02 000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxx XX
44 0000 - 00xx Xxxxxx Xxxx Xxxxxxx XX
45 00-000 X.X. Xxxxxx Xxxx. Xxxxxxxxxx XX
46 000 X. Xxx Xxxxxx Xxxxxxx XX
47 000 X. Xxxxxxx Xxxxx Xxxxxxxxx XX
48 0000 Xxxxxxx Xxxx Xxxxxxxxx XX
49 000 Xxxxx Xxxxx Xxxxxxxxxxxx XX
50 0000-0000 X. Xxx Xxxxx Xxxx Xxx Xxxxx XX
51 0000 Xxxxxxxx Xxxx Xxxxxx Xxxx XX
52 0000 Xxxxx Xxxx Xxxxxxxxxx XX
53 00000 XX Xxxxxxx Xx. Xxxxxxxxx XX
54 000 Xxxxxxxxxxxx Xxxx X Xxxxxxxxxxxx XX
55 0000 X. Xxxx Xxxxxx Xxxxxxxxxxx XX
56 0000 X. 000xx Xxx. Xxxxx XX
57 4225,4325, and 0000 Xxxxx Xxxx Xxxxxx XX
58 000-000 Xxxxx Xxxxxx Xxxxxxx XX
59 00000 Xxxxx 00xx Xxxxxx Xxxxx XX
60 0000-0000 XX 00xx XX, 0000-0000 SW 23rd Terr., 0000-0000 XX Xxxxx Xx. Xxxxxx XX
61 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX
62 000 Xxxxxx Xxxx Xxxxx Xxxxxxxxx XX
63 0000 Xxxxxxx 00 Xxxx Xx. Xxxxx XX
64 000 X Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX
65 0000 Xxxxxxxx XXXX Xxxxxx XX
66 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX
67 0000-0000 Xxxxx Xxxxxx Xxxx Xxxxxxx XX
68 000 Xxxxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX
69 0000 X. Xxxxxx Xxxx Xxxxxx XX
70 0000 Xxxx Xxxxxxxx Xxx (0000 X) Xxxx Xxxxxx Xxxx XX
71 2400 & 2500 Nantucket; 2400 & 0000 Xxxxxxxxx Xxxxxxxxxx XX
72 0000 Xxxxxxxxx Xx Xxxxxxxx Xxxxxxx XX
73 000 Xxxxx Xx Xxxxxx Xxxx XX
74 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx XX
75 00000 Xxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX
76 000 X Xxxxxx Xxxxxxx XX
77 0000 Xxxx Xxxx Xxxxxxxxxxxx XX
78 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
79 00 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX
80 0000 Xxxxxxx Xxx Xxxxxxxxxx XX
81 000 Xxxxxxxxx Xxx. Xxx Xxxx XX
82 00 Xxxxx Xxx Xxxx Xxxxxxxxx XX
83 0000 Xxxxx Xxxx Xxxx Xxxxxx XX
84 0000-0000 Xxxxx Xxxxxx Xxxxxxxx XX
85 000-000 XXX 000 Xxxx Xxxxxxxx XX
86 00000 X Xxxxx Xxxxx Xxxxxxx XX
87 0000 Xxxxx Xxxxxxx Xxx Xxxxxxxx XX
88 000 Xxxxx Xxxx Xxxxxx Xxxxxx XX
89 0000 X. Xxxxx Xxxxxxxx Xxxxx Xxxxxx XX
90 000 Xxxxx Xxx Xxx Xxxxxx Xxxxxxxx XX
91 000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx XX
92 0000 Xxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX
93 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx XX
94 000 Xxxxxxxx Xxxxxx Xxxxxx XX
95 0000 Xxxxxxxx Xxxx. Xxxxxxxx XX
96 907 South Xxxxxx (Hwy 35) Knox IN
97 000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx XX
98 0000-0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX
99 000 Xxxxx Xxxxxxxx Xxx Xxxxxxxx XX
100 0000 X Xxxxxxxxx Xxxxxxx XX
101 0000 X Xxxxxxxx Xxx Xxxxxxx XX
102 0000 X. Xxxxxxxx Xxx Xxxxxx XX
103 000 X Xxxxx Xxxxx Xxxxxxx XX
104 000 Xxxxxxxxx Xxxxxx Xxxxxx XX
105 00 Xxxxxxx Xxxx Xxxxxxxx NY
106 0000 Xxxxx 00 Xxxxxx XX
TABLE CONTINUED
MORTGAGE LOAN
NUMBER PROPERTY ZIP CODE PROPERTY TYPE NUMBER OF UNITS UNIT TYPE ORIGINAL PRINCIPAL BALANCE
------------------------------------------------------------------------------------------------------------------------------------
1 90017 Retail 216,458 Sq. Ft. 35,000,000.00
2 92641 Retail 351,537 Sq. Ft. 27,600,000.00
3 10010 Office 181,374 Sq. Ft. 26,000,000.00
4 Various Self-Storage 7,128 Units 25,784,900.00
4.01 77072 Self-Storage 637 Units
4.02 10467 Self-Storage 301 Units
4.03 76206 Self-Storage 745 Units
4.04 85226 Self-Storage 896 Units
4.05 75074 Self-Storage 658 Units
4.06 92126 Self-Storage 498 Units
4.07 02139 Self-Storage 528 Units
4.08 08077 Self-Storage 306 Units
4.09 89511 Self-Storage 668 Units
4.10 80012 Self-Storage 561 Units
4.11 18052 Self-Storage 416 Units
4.12 02914 Self-Storage 339 Units
4.13 92234 Self-Storage 244 Units
4.14 84107 Self-Storage 331 Units
5 91764 Mixed Use 424,227 Sq. Ft. 20,250,000.00
6 48071 Retail 225,983 Sq. Ft. 20,000,000.00
7 85023 Multifamily 672 Units 19,000,000.00
8 33431 Retail 174,004 Sq. Ft. 18,500,000.00
9 23112 Multifamily 312 Units 16,875,000.00
10 46321 Retail 144,596 Sq. Ft. 16,150,000.00
11 32765 Multifamily 294 Units 16,240,000.00
12 10512 Office 89,893 Sq. Ft. 16,000,000.00
13 14450 Office 156,906 Sq. Ft. 15,900,000.00
14 19103 Multifamily 95 Units 14,300,000.00
15 33304 Hospitality 229 Rooms 13,916,184.99
16 48104 Multifamily 167 Units 12,420,000.00
16.01 48104 Multifamily 16 Units
16.02 48104 Multifamily 10 Units
16.03 48104 Multifamily 14 Units
16.04 48104 Multifamily 23 Units
16.05 48104 Multifamily 8 Units
16.06 48104 Multifamily 18 Units
16.07 48104 Multifamily 12 Units
16.08 48104 Multifamily 23 Units
16.09 48104 Multifamily 21 Units
16.10 48104 Multifamily 8 Units
16.11 48104 Multifamily 14 Units
17 13850 Retail 105,815 Sq. Ft. 10,975,000.00
17.01 13850 Retail 92,328 Sq. Ft.
17.02 13850 Retail 13,487 Sq. Ft.
18 60431 Retail 87,705 Sq. Ft. 10,944,000.00
19 55104 Office 102,070 Sq. Ft. 10,935,000.00
00 00000 Mobile Home Park 346 Units 10,100,000.00
21 22191 Retail 90,885 Sq. Ft. 9,840,000.00
22 89123 Multifamily 180 Units 9,800,000.00
23 33129 Multifamily 120 Units 9,900,000.00
24 02210 Industrial 197,224 Sq. Ft. 9,750,000.00
25 21218 Multifamily 389 Units 9,700,000.00
26 27520 Multifamily 136 Units 9,000,000.00
27 95330 Office 81,162 Sq. Ft. 8,900,000.00
28 77401 Office 153,507 Sq. Ft. 8,800,000.00
29 19001 Retail 75,742 Sq. Ft. 8,800,000.00
30 33025 Mixed Use 109,664 Sq. Ft. 8,270,000.00
31 89032 Retail 81,564 Sq. Ft. 8,000,000.00
32 93612 Retail 143,895 Sq. Ft. 8,000,000.00
00 00000 Mobile Home Park 273 Units 7,825,000.00
34 75001 Industrial 96,409 Sq. Ft. 7,750,000.00
35 28270 Multifamily 164 Units 7,629,000.00
36 20171 Hospitality 109 Rooms 7,500,000.00
37 95838 Multifamily 144 Units 7,400,000.00
37.01 95838 Multifamily 100 Units
37.02 95838 Multifamily 44 Units
38 92832 Multifamily 94 Units 7,000,000.00
39 95330 Industrial 232,188 Sq. Ft. 6,850,000.00
40 92029 Retail 46,109 Sq. Ft. 6,500,000.00
41 33044 Multifamily 161 Units 6,350,000.00
41.01 33044 Multifamily 141 Units
41.02 33044 Multifamily 20 Units
42 66103 Multifamily 167 Units 5,700,000.00
43 23606 Office 101,361 Sq. Ft. 5,500,000.00
43.01 23606 Office 62,292 Sq. Ft.
43.02 23606 Office 39,069 Sq. Ft.
44 98015 Multifamily 120 Units 5,500,000.00
45 28472 Retail 62,935 Sq. Ft. 5,450,000.00
46 85013 Multifamily 132 Units 5,350,000.00
47 89015 Multifamily 124 Units 5,200,000.00
48 14043 Multifamily 168 Units 5,100,000.00
49 37072 Multifamily 167 Units 5,000,000.00
50 89115 Retail 94,764 Sq. Ft. 5,000,000.00
51 72227 Office 50,403 Sq. Ft. 4,875,000.00
52 40218 Multifamily 184 Units 4,800,000.00
53 97006 Hospitality 123 Rooms 4,750,000.00
54 63017 Hospitality 145 Rooms 4,750,000.00
55 29307 Multifamily 200 Units 4,700,000.00
56 33612 Multifamily 130 Units 4,500,000.00
57 92880 Industrial 177,115 Sq. Ft. 4,375,000.00
58 20171 Retail 18,999 Sq. Ft. 4,000,000.00
59 33613 Multifamily 96 Units 4,000,000.00
60 66614 Multifamily 54 Units 4,000,000.00
61 40229 Multifamily 240 Units 4,000,000.00
62 37902 Hospitality 198 Rooms 4,000,000.00
63 31558 Retail 45,215 Sq. Ft. 3,920,000.00
64 80910 Retail 15,120 Sq. Ft. 3,850,000.00
65 81001 Retail 15,120 Sq. Ft. 3,740,000.00
66 23219 Multifamily 56 Units 3,664,000.00
67 30474 Retail 45,096 Sq. Ft. 3,640,000.00
68 20879 Office 26,127 Sq. Ft. 3,300,000.00
69 85750 Retail 15,120 Sq. Ft. 3,153,000.00
70 84119 Industrial 65,794 Sq. Ft. 3,075,000.00
71 61920 Multifamily 88 Units 3,026,000.00
72 80920 Retail 14,490 Sq. Ft. 2,976,000.00
73 80104 Mixed Use 18,195 Sq. Ft. 2,850,000.00
74 78751 Multifamily 70 Units 2,750,000.00
75 20705 Industrial 65,862 Sq. Ft. 2,701,000.00
76 60657 Multifamily 80 Units 2,575,000.00
77 23832 Office 31,374 Sq. Ft. 2,475,000.00
78 95678 Retail 10,856 Sq. Ft. 2,400,000.00
79 60090 Retail 15,120 Sq. Ft. 2,385,000.00
80 40214 Multifamily 124 Units 2,300,000.00
81 60302 Multifamily 93 Units 2,175,000.00
00 00000 Mobile Home Park 97 Units 2,150,000.00
00 00000 Mobile Home Park 149 Units 2,135,000.00
84 23219 Multifamily 17 Units 2,100,000.00
85 39702 Retail 31,700 Sq. Ft. 2,062,500.00
86 48223 Multifamily 100 Units 2,063,000.00
87 33860 Retail 48,505 Sq. Ft. 2,025,000.00
88 27253 Retail 10,125 Sq. Ft. 2,008,000.00
00 00000 Mobile Home Park 100 Units 2,000,000.00
90 77904 Multifamily 84 Units 2,000,000.00
91 75652 Multifamily 109 Units 1,880,000.00
92 35805 Retail 10,125 Sq. Ft. 1,875,000.00
93 23223 Multifamily 31 Units 1,800,000.00
94 12047 Retail 10,880 Sq. Ft. 1,762,500.00
95 90022 Office 26,200 Sq. Ft. 1,680,000.00
96 46534 Retail 10,125 Sq. Ft. 1,626,148.26
97 32114 Industrial 34,196 Sq. Ft. 1,455,000.00
98 55082 Retail 17,247 Sq. Ft. 1,450,000.00
99 60202 Multifamily 25 Units 1,380,000.00
100 60641 Multifamily 48 Units 1,350,000.00
101 60660 Multifamily 42 Units 1,300,000.00
102 85712 Multifamily 68 Units 1,200,000.00
103 60657 Multifamily 38 Units 1,170,000.00
104 71270 Multifamily 11 Units 1,160,000.00
105 14063 Multifamily 42 Units 1,000,000.00
106 14532 Industrial 32,700 Sq. Ft. 952,500.00
TABLE CONTINUED
CURRRENT MONTHLY ORIG TERM REM TERM TO
MORTGAGE LOAN PRINCIPAL DEBT ACCRUAL TO STATED STATED
NUMBER BALANCE SERVICE RATE BASIS MATURITY MATURITY
------------------------------------------------------------------------------------------------------------------------------------
1 34,977,448.28 230,510.05 6.900% Actual/360 120 119
2 27,600,000.00 194,497.38 7.580% Actual/360 120 120
3 26,000,000.00 177,365.83 7.250% Actual/360 120 120
4 25,761,204.10 191,555.60 7.560% Actual/360 120 119
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
4.13
4.14
5 20,250,000.00 138,140.70 7.250% Actual/360 94 94
6 20,000,000.00 134,136.78 7.080% Actual/360 120 113
7 19,000,000.00 124,119.01 6.820% Actual/360 120 117
8 18,475,443.54 120,729.42 6.810% Actual/360 120 118
9 16,864,384.91 112,043.22 6.980% Actual/360 120 119
10 16,140,653.88 110,171.47 7.250% Actual/360 120 119
11 16,013,419.45 107,174.00 6.920% Actual/360 120 102
12 15,990,740.68 109,148.20 7.250% Actual/360 120 119
13 15,882,117.96 109,546.57 7.350% Actual/360 120 118
14 14,256,561.48 101,066.99 7.610% Actual/360 120 115
15 13,846,138.98 103,837.15 7.610% Actual/360 114 107
16 12,394,446.97 83,039.69 7.049% Actual/360 120 117
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
16.11
17 10,975,000.00 77,491.70 7.600% Actual/360 120 120
17.01
17.02
18 10,944,000.00 73,547.18 7.100% Actual/360 120 120
19 10,935,000.00 75,264.66 7.340% Actual/360 120 120
20 10,042,799.05 70,206.17 7.440% Actual/360 126 117
21 9,840,000.00 66,460.02 7.150% Actual/360 120 118
22 9,800,000.00 65,925.23 7.110% Actual/360 120 120
23 9,778,634.29 67,535.45 7.250% Actual/360 120 103
24 9,750,000.00 71,481.83 7.410% Actual/360 120 120
25 9,700,000.00 66,565.17 7.040% Actual/360 84 84
26 8,994,462.83 60,197.92 7.053% Actual/360 120 119
27 8,895,075.04 61,561.10 7.390% Actual/360 120 119
28 8,795,255.80 61,350.20 7.470% Actual/360 120 119
29 8,757,430.11 64,571.28 8.000% Actual/360 120 111
30 8,265,438.47 57,259.81 7.400% Actual/360 120 119
31 7,983,759.36 53,762.56 7.100% Actual/360 120 117
32 7,974,236.41 55,335.82 7.390% Actual/360 120 115
33 7,825,000.00 54,586.86 7.110% Actual/360 120 119
34 7,734,880.57 52,868.66 7.250% Actual/360 120 117
35 7,564,575.81 52,613.64 7.360% Actual/360 120 108
36 7,466,051.83 58,583.50 8.140% Actual/360 120 115
37 7,390,718.45 49,232.38 7.000% Actual/360 120 118
37.01
37.02
38 6,972,488.80 50,197.24 7.760% Actual/360 120 113
39 6,841,730.48 46,149.72 7.125% Actual/360 120 118
40 6,500,000.00 44,341.46 7.250% Actual/360 94 94
41 6,346,029.68 42,246.71 7.000% Actual/360 120 119
41.01
41.02
42 5,692,632.76 37,540.21 6.900% Actual/360 120 118
43 5,500,000.00 36,850.57 7.070% Actual/360 120 120
43.01
43.02
44 5,496,715.82 37,147.37 7.150% Actual/360 120 119
45 5,446,954.79 37,586.10 7.360% Actual/360 120 119
46 5,326,447.12 36,896.44 7.360% Actual/360 120 113
47 5,193,536.93 34,700.56 7.030% Actual/360 120 118
48 5,093,408.26 33,588.61 6.900% Actual/360 84 82
49 4,997,312.78 34,892.78 7.480% Actual/360 120 119
50 4,995,342.11 36,949.56 7.500% Actual/360 120 119
51 4,872,258.51 33,554.20 7.340% Actual/360 120 119
52 4,796,998.81 31,934.52 7.000% Actual/360 120 119
53 4,746,339.09 37,610.22 8.300% Actual/360 120 119
54 4,746,339.09 37,610.22 8.300% Actual/360 120 119
55 4,681,472.62 32,046.35 7.245% Actual/360 120 114
56 4,486,659.15 32,083.21 7.700% Actual/360 60 55
57 4,372,725.95 30,830.65 7.580% Actual/360 120 119
58 4,000,000.00 28,490.82 7.690% Actual/360 120 120
59 4,000,000.00 27,627.01 7.375% Actual/360 120 120
60 3,994,596.50 25,943.92 6.750% Actual/360 120 118
61 3,994,097.96 33,457.60 8.000% Actual/360 120 119
62 3,969,264.19 31,566.64 7.500% Actual/360 120 115
63 3,912,042.10 26,343.65 7.100% Actual/360 120 117
64 3,850,000.00 26,525.43 7.350% Actual/360 120 120
65 3,735,712.40 25,614.94 7.290% Actual/360 120 118
66 3,659,576.71 24,685.05 7.125% Actual/360 84 82
67 3,632,610.52 24,461.96 7.100% Actual/360 120 117
68 3,293,562.05 22,511.82 7.250% Actual/360 120 117
69 3,146,548.55 21,125.42 7.070% Actual/360 120 117
70 3,073,287.37 21,227.78 7.370% Actual/360 120 119
71 3,024,251.04 20,650.86 7.254% Actual/360 120 119
72 2,976,000.00 20,146.37 7.173% Actual/360 120 120
73 2,844,439.95 19,442.02 7.250% Actual/360 120 117
74 2,736,985.34 19,625.38 7.710% Actual/360 120 112
75 2,695,778.95 19,697.37 7.350% Actual/360 120 118
76 2,569,782.16 17,316.98 7.107% Actual/360 120 117
77 2,470,080.63 16,766.51 7.180% Actual/360 120 117
78 2,391,849.71 18,787.68 7.125% Actual/360 120 118
79 2,383,736.94 16,715.48 7.524% Actual/360 120 119
80 2,293,189.27 19,238.12 8.000% Actual/360 120 118
81 2,173,788.63 15,014.77 7.370% Actual/360 120 119
82 2,148,773.41 14,732.47 7.295% Actual/360 120 119
83 2,135,000.00 14,391.10 7.130% Actual/360 120 120
84 2,097,366.05 13,971.35 7.000% Actual/360 120 118
85 2,062,500.00 14,111.88 7.280% Actual/360 120 120
86 2,061,806.12 14,073.30 7.250% Actual/360 120 119
87 2,023,134.82 15,030.49 7.550% Actual/360 120 119
88 2,005,698.00 13,752.62 7.290% Actual/360 120 118
89 2,000,000.00 13,481.12 7.130% Actual/360 120 120
90 1,997,415.00 13,172.00 6.900% Actual/360 60 58
91 1,876,321.43 13,643.32 7.295% Actual/360 120 118
92 1,873,995.79 13,097.44 7.490% Actual/360 120 119
93 1,798,991.00 12,401.50 7.350% Actual/360 120 119
94 1,760,492.26 12,095.17 7.310% Actual/360 120 118
95 1,680,000.00 12,143.16 7.250% Actual/360 94 94
96 1,623,176.90 12,123.07 7.600% Actual/360 120 118
97 1,452,187.48 10,610.76 7.350% Actual/360 120 118
98 1,446,567.94 10,138.61 7.500% Actual/360 120 116
99 1,377,203.65 9,280.56 7.107% Actual/360 120 117
100 1,347,264.44 9,078.80 7.107% Actual/360 120 117
101 1,297,365.75 8,742.55 7.107% Actual/360 120 117
102 1,193,314.07 8,390.57 7.500% Actual/360 120 111
103 1,167,629.18 7,868.30 7.107% Actual/360 120 117
104 1,157,660.55 7,815.14 7.125% Actual/360 120 117
105 998,764.65 6,686.64 7.050% Actual/360 60 58
106 950,658.81 6,946.22 7.350% Actual/360 120 118
TABLE CONTINUED
STATED
MATURITY ORIG XXX XXX ANTICIPATED
MORTGAGE LOAN (OR ARD) AMORT AMORT LEASEHOLD SERVICING LOAN REPAYMENT
NUMBER DATE TERM TERM FLAG FEE FLAG DATE
------------------------------------------------------------------------------------------------------------------------------------
1 1/1/12 360 359 0.0500% ARD 1/1/12
2 2/1/12 360 360 0.0500% ARD 2/1/12
3 2/1/12 360 360 0.0500%
4 1/1/12 300 299 0.0500%
4.01 0.0500%
4.02 0.0500%
4.03 0.0500%
4.04 0.0500%
4.05 0.0500%
4.06 0.0500%
4.07 0.0500%
4.08 0.0500%
4.09 0.0500%
4.10 0.0500%
4.11 0.0500%
4.12 0.0500%
4.13 0.0500%
4.14 0.0500%
5 12/1/09 360 360 0.0500%
6 7/1/11 360 360 0.0750%
7 11/1/11 360 360 0.0500%
8 12/1/11 360 358 Leasehold 0.0500%
9 1/1/12 360 359 0.0500%
10 1/1/12 360 359 0.0500%
11 8/1/10 360 342 0.0500%
12 1/1/12 360 359 Leasehold 0.0500%
13 12/1/11 360 358 0.0500%
14 9/1/11 360 355 0.0500%
15 1/1/11 300 295 0.0500% ARD 1/1/11
16 11/1/11 360 357 0.0750%
16.01 0.0500%
16.02 0.0500%
16.03 0.0500%
16.04 0.0500%
16.05 0.0500%
16.06 0.0500%
16.07 0.0500%
16.08 0.0500%
16.09 0.0500%
16.10 0.0500%
16.11 0.0500%
17 2/1/12 360 360 0.0500%
17.01 0.0500%
17.02 0.0500%
18 2/1/12 360 360 0.0500%
19 2/1/12 360 360 0.0500%
20 11/1/11 360 351 0.0500%
21 12/1/11 360 360 0.0500%
22 2/1/12 360 360 0.0500%
23 9/1/10 360 343 0.0500%
24 2/1/12 300 300 0.0500%
25 2/1/09 330 330 0.0500%
26 1/1/12 360 359 0.0500%
27 1/1/12 360 359 0.0500%
28 1/1/12 360 359 0.0750%
29 5/1/11 360 351 0.0500%
30 1/1/12 360 359 0.0500%
31 11/1/11 360 357 0.0500%
32 9/1/11 360 355 0.0500%
33 1/1/12 320 320 0.0500%
34 11/1/11 360 357 0.0750%
35 2/1/11 360 348 0.0500%
36 9/1/11 300 295 0.0500%
37 12/1/11 360 358 0.0500%
37.01 0.0500%
37.02 0.0500%
38 7/1/11 360 353 0.0500%
39 12/1/11 360 358 0.1150%
40 12/1/09 360 360 0.0500%
41 1/1/12 360 359 0.0500%
41.01 0.0500%
41.02 0.0500%
42 12/1/11 360 358 0.0500%
43 2/1/12 360 360 0.0500%
43.01 0.0500%
43.02 0.0500%
44 1/1/12 360 359 0.0500%
45 1/1/12 360 359 0.0500% ARD 1/1/12
46 7/1/11 360 353 0.0500%
47 12/1/11 360 358 0.0500%
48 12/1/08 360 358 0.0500%
49 1/1/12 360 359 0.0500%
50 1/1/12 300 299 0.0500%
51 1/1/12 360 359 0.0500%
52 1/1/12 360 359 0.0500%
53 1/1/12 300 299 0.0500%
54 1/1/12 300 299 0.0500%
55 8/1/11 360 354 0.0500%
56 9/1/06 360 355 0.0500%
57 1/1/12 360 359 0.1250%
58 2/1/12 360 360 0.0500%
59 2/1/12 360 360 0.0500%
60 12/1/11 360 358 0.0500%
61 1/1/12 240 239 0.0500%
62 9/1/11 252 247 0.0500%
63 11/1/11 360 357 0.0500%
64 2/1/12 360 360 0.0500%
65 12/1/11 360 358 0.0500%
66 12/1/08 360 358 0.0500%
67 11/1/11 360 357 0.0500%
68 11/1/11 360 357 0.0500%
69 11/1/11 360 357 0.0500%
70 1/1/12 360 359 0.0500%
71 1/1/12 360 359 0.0500%
72 2/1/12 360 360 0.0500%
73 11/1/11 360 357 0.0850%
74 6/1/11 360 352 0.0500%
75 12/10/11 300 298 0.0500%
76 11/1/11 360 357 0.0500%
77 11/1/11 360 357 0.0500%
78 12/1/11 240 238 0.0500%
79 1/1/12 360 359 0.0500%
80 12/1/11 240 238 0.0500%
81 1/1/12 360 359 0.0500%
82 1/1/12 360 359 0.0500%
83 2/1/12 360 360 0.0500%
84 12/1/11 360 358 0.0500%
85 2/1/12 360 360 0.0500%
86 1/1/12 360 359 0.0500%
87 1/1/12 300 299 0.0500%
88 12/1/11 360 358 0.0500%
89 2/1/12 360 360 0.0500%
90 12/1/06 360 358 0.0500%
91 12/1/11 300 298 0.0500%
92 1/1/12 360 359 0.0500%
93 1/1/12 360 359 0.0500%
94 12/1/11 360 358 0.0500%
95 12/1/09 300 300 0.0500%
96 12/10/11 300 298 0.0500%
97 12/10/11 300 298 0.0500%
98 10/1/11 360 356 0.0500%
99 11/1/11 360 357 0.0500%
100 11/1/11 360 357 0.0500%
101 11/1/11 360 357 0.0500%
102 5/1/11 360 351 0.0500%
103 11/1/11 360 357 0.0500%
104 11/1/11 360 357 0.0500%
105 12/1/06 360 358 0.0500%
106 12/10/11 300 298 0.0500%
TABLE CONTINUED
LETTER
LEASE CROSS OF INTEREST
MORTGAGE LOAN ENHANCEMENT ENVIRONMENTAL COLLATERALIZED/ DEFEASANCE CREDIT RESERVE LOAN LOCKBOX
NUMBER POLICY FLAG POLICY FLAG DEFAULTED FLAG FLAG FLAG TYPE
---------------------------------------------------------------------------------------------------------------------------------
1 Defeasance Actual/360 Day 1
2 Yes Defeasance Actual/360 Day 1
3 Defeasance Actual/360 Springing
4 Yes Defeasance Actual/360
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
4.13
4.14
5 Abbey Portfolio Defeasance Actual/360 Springing
6 Defeasance Actual/360
7 Defeasance Actual/360 Springing
8 Defeasance Actual/360
9 Defeasance Actual/360 Springing
10 Defeasance Actual/360 Springing
11 Yield Maintenance Actual/360
12 Defeasance Actual/360 Day 1
13 Defeasance Actual/360 Day 1
14 Defeasance Actual/360
15 Defeasance Actual/360 Day 1
16 Yes Defeasance Actual/360 Springing
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
16.11
17 Defeasance Actual/360
17.01
17.02
18 Defeasance Actual/360
19 Defeasance Actual/360 Springing
20 Defeasance Actual/360 Springing
21 Defeasance Actual/360
22 Defeasance Actual/360
23 Yield Maintenance Actual/360
24 Defeasance Actual/360 Day 1
25 Defeasance Actual/360
26 Defeasance Actual/360 Springing
27 Defeasance Actual/360
28 Defeasance Actual/360 Springing
29 Defeasance Actual/360 Day 1
30 Defeasance Actual/360
31 Defeasance Actual/360
32 Defeasance Actual/360
33 Defeasance Actual/360 Springing
34 Defeasance Actual/360 Springing
35 Yield Maintenance Actual/360
36 Defeasance Actual/360
37 Defeasance Actual/360 Springing
37.01
37.02
38 Defeasance Actual/360
39 Defeasance Actual/360
40 Abbey Portfolio Defeasance Actual/360 Springing
41 Defeasance Actual/360 Springing
41.01
41.02
42 Defeasance Actual/360 Springing
43 Defeasance Actual/360
43.01
43.02
44 Defeasance Actual/360
45 Defeasance Actual/360 Springing
46 Defeasance Actual/360 Springing
47 Defeasance Actual/360
48 Defeasance Actual/360 Springing
49 Defeasance Actual/360 Springing
50 Yes Defeasance Actual/360
51 Defeasance Actual/360
52 Defeasance Actual/360 Springing
53 Apple Suites Defeasance Actual/360 Springing
54 Apple Suites Defeasance Actual/360 Springing
55 Defeasance Actual/360
56 Penalty Actual/360
57 Defeasance Actual/360
58 Defeasance Actual/360
59 Defeasance Actual/360
60 Defeasance Actual/360
61 Defeasance Actual/360 Day 1
62 Penalty Actual/360
63 Defeasance Actual/360
64 Defeasance Actual/360 Springing
65 Defeasance Actual/360 Springing
66 Defeasance Actual/360
67 Defeasance Actual/360
68 Yield Maintenance Actual/360 Springing
69 Defeasance Actual/360 Day 1
70 Defeasance Actual/360
71 Defeasance Actual/360 Springing
72 Defeasance Actual/360 Springing
73 Defeasance Actual/360 Springing
74 Defeasance Actual/360
75 Defeasance Actual/360 Day 1
76 Defeasance Actual/360 Springing
77 Defeasance Actual/360
78 Defeasance Actual/360 Springing
79 Defeasance Actual/360 Springing
80 Defeasance Actual/360 Day 1
81 Defeasance Actual/360
82 Defeasance Actual/360 Springing
83 Defeasance Actual/360 Springing
84 Defeasance Actual/360
85 Defeasance Actual/360 Springing
86 Defeasance Actual/360
87 Defeasance Actual/360
88 Yes Defeasance Actual/360
89 Defeasance Actual/360 Springing
90 Defeasance Actual/360 Springing
91 Defeasance Actual/360 Springing
92 Yes Defeasance Actual/360 Springing
93 Defeasance Actual/360 Day 1
94 Defeasance Actual/360 Springing
95 Abbey Portfolio Defeasance Actual/360 Springing
96 Defeasance Actual/360 Day 1
97 Defeasance Actual/360 Day 1
98 Defeasance Actual/360
99 Defeasance Actual/360 Springing
100 Defeasance Actual/360 Springing
101 Defeasance Actual/360 Springing
102 Defeasance Actual/360
103 Defeasance Actual/360 Springing
104 Defeasance Actual/360
105 Defeasance Actual/360 Springing
106 Defeasance Actual/360 Day 1
TABLE CONTINUED
INITIAL INITIAL TOTAL
MORTGAGE LOAN ENVIRONMENTAL REPAIR INITIAL TI/ RESERVE GRACE
NUMBER RESERVES RESERVES LC RESERVES FUNDS PERIOD NOTES
------------------------------------------------------------------------------------------------------------------------------------
1 2,750,000 2,750,000 5 Monthly Debt Service increases to
$244,010.05 at payment 61.
2 5
3 46,375 46,375 7
4 531,250 77,916 609,166 7
4.01 31,250 250 31,500
4.02 13,094 13,094
4.03 994 994
4.04 31 31
4.05 1,125 1,125
4.06
4.07 11,375 11,375
4.08 200,000 12,531 212,531
4.09
4.10
4.11 29,266 29,266
4.12 5,625 5,625
4.13 375 375
4.14 3,250 3,250
5 7
6 7
7 177,500 177,500 7
8 92,000 92,000 7
9 1,700 1,700 7
10 7
11 7
12 5
13 1,875 1,875 5
14 19,750 10,313 30,063 7
15 5
16 3,500 3,500 5
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
16.11
17 5
17.01
17.02
18 7
19 87,600 300,000 387,600 5
20 5
21 7
22 5
23 7
24 27,550 250,000 277,550 7
25 43,750 413,750 457,500 5
26 5
27 14,685 14,685 7
28 5
29 5
30 100,000 100,000 5
31 7
32 21,538 300,000 321,538 7
33 7,750 7,750 5
34 5
35 15
36 23,500 23,500 7
37 5
37.01
37.02
38 25,000 27,500 52,500 7
39 7
40 7
41 30,125 30,125 5
41.01
41.02
42 1,250 1,250 5
43 13,750 400,000 413,750 5
43.01
43.02
44 1,000 34,288 35,288 7
45 5
46 1,875 1,875 5
47 7
48 26,895 26,895 5
49 5
50 12,500 225,000 237,500 5
51 100,000 100,000 5
52 132,500 132,500 5
53 7
54 7
55 1,980 1,980 5
56 7
57 65,000 65,000 5
58 5
59 1,000 1,000 7
60 7
61 23,725 23,725 7
62 7
63 180,000 180,000 7
64 5
65 5
66 688 688 7
67 180,000 180,000 7
68 100,000 100,000 5
69 5
70 10,000 10,000 5
71 9,375 9,375 5
72 5
73 66,000 66,000 5
74 21,950 21,950 7
75 0
76 5
77 150,000 150,000 5
78 7
79 5
80 625 18,725 19,350 7
81 4,375 4,375 7
82 35,250 35,250 5
83 5
84 7
85 5
86 28,531 28,531 7
87 25,000 25,000 7
88 7
89 5
90 5
91 4,313 4,313 5
92 5
93 5
94 5
95 6,250 75,000 81,250 7
96 0
97 0
98 7
99 5
100 5
101 5
102 7
103 5
104 7
105 26,438 26,438 5
106 0
EXHIBIT C-1
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
COLLATERAL ID BORROWER NAME INVESTOR ID LOAN AMOUNT DOCTYPE EXCEPTION
------------- ------------- ----------- ----------- ------- ---------
432002C1 Peninsula Portfolio Deutsche Bank 5,500,000.00 LCRD 01
302002C1 Flamingo Park of Commerce Deutsche Bank 8,270,000.00 MISC 01
432002C1 Peninsula Portfolio Deutsche Bank 5,500,000.00 MISC 01
12002C1 Wilshire Union Center Deutsche Bank 35,000,000.00 MORT 20
152002C1 Doubletree Guest Suites Fort Lauderdale, Florida Deutsche Bank 13,916,184.99 MORT 20
172002C1 Shoppes at Xxxxxx / Pier I Shopping Center Deutsche Bank 10,975,000.00 MORT 20
222002C1 St. Xxxxx Apartments Deutsche Bank 9,800,000.00 MORT 20
252002C1 Northwood Apartments Deutsche Bank 9,700,000.00 MORT 20
302002C1 Flamingo Park of Commerce Deutsche Bank 8,270,000.00 MORT 20
432002C1 Peninsula Portfolio Deutsche Bank 5,500,000.00 MORT 20
502002C1 Cheyenne Plaza Deutsche Bank 5,000,000.00 MORT 20
582002C1 Xxxxxxx Center V Deutsche Bank 4,000,000.00 MORT 20
932002C1 Xxxxxxxxx Apartments Deutsche Bank 1,800,000.00 MORT 20
582002C1 Xxxxxxx Center V Deutsche Bank 4,000,000.00 MORT 23
572002C1 Green River Center Deutsche Bank 4,375,000.00 MORT 96
192002C1 Central Medical LaSalle 10,935,000.00 MORT 20
332002C1 Eagle Crest MHP LaSalle 7,825,000.00 MORT 20
342002C1 Addison Com Center LaSalle 7,750,000.00 MORT 20
412002C1 Chartre Oaks - Ridge Apartments LaSalle 6,350,000.00 MORT 20
482002C1 Meadowood Apts LaSalle 5,100,000.00 MORT 20
492002C1 Crestview Apartments LaSalle 5,000,000.00 MORT 20
652002C1 Walgreens Pueblo LaSalle 3,740,000.00 MORT 20
792002C1 Walgreens Milwaukee & Dundee Road LaSalle 2,385,000.00 MORT 20
832002C1 The Valley MHP LaSalle 2,135,000.00 MORT 20
892002C1 The Hills MHP LaSalle 2,000,000.00 MORT 20
1052002C1 Campus Edge Apts LaSalle 1,000,000.00 MORT 20
00X0000X0 Chartre Oaks LaSalle 0.00 MORT 20
41B2002C1 Chartre Ridge LaSalle 0.00 MORT 20
852002C1 Xxxxxxxx Crossing Shopping Center LaSalle 2,062,500.00 MORT 96
32002C1 00 Xxxxxxx Xxxxxx Wachovia 26,000,000.00 MORT 20
52002C1 Transpark Business Center Wachovia 20,250,000.00 MORT 20
82002C1 University Commons Wachovia 18,500,000.00 MORT 20
102002C1 Town Square Shopping Center Wachovia 16,150,000.00 MORT 20
182002C1 Shorewood Crossing Wachovia 10,944,000.00 MORT 20
212002C1 River Oaks Shopping Center Wachovia 9,840,000.00 MORT 20
242002C1 410 - 000 X Xxxxxx Wachovia 9,750,000.00 MORT 20
272002C1 Thousand Oaks Corporate Center Wachovia 8,900,000.00 MORT 20
392002C1 Lathrop Industrial Park Wachovia 6,850,000.00 MORT 20
402002C1 Escondido Commerce Center Wachovia 6,500,000.00 MORT 20
442002C1 Trailside Apartments Wachovia 5,500,000.00 MORT 20
472002C1 Cha Cha Cha Apartments Wachovia 5,200,000.00 MORT 20
4A2002C1 U-Haul Ctr Alief Wachovia 0.00 MORT 20
4B2002C1 U-Haul Bronx Park Wachovia 0.00 MORT 20
4C2002C1 U-Haul Center Xxxxxx Wachovia 0.00 MORT 20
4D2002C1 U-Haul Center Kyrene Road Wachovia 0.00 MORT 20
4E2002C1 U-Haul Center Los Xxxx Wachovia 0.00 MORT 20
4F2002C1 U-Haul Center Miramar Wachovia 0.00 MORT 20
4G2002C1 U-Haul Central Sq Wachovia 0.00 MORT 20
4H2002C1 U-Haul Cinnaminson Wachovia 0.00 MORT 20
4I2002C1 U-Haul Ctr Dbl Diamond Ranch Wachovia 0.00 MORT 20
4J2002C1 U-Haul Center S Havana Wachovia 0.00 MORT 20
4K2002C1 U-Haul MacArthur Road Wachovia 0.00 MORT 20
4L2002C1 U-Haul N Broadway Wachovia 0.00 MORT 20
4M2002C1 U-Haul Palm Springs Wachovia 0.00 MORT 20
4N2002C1 U-Haul Ctr Salt Lake Wachovia 0.00 MORT 20
532002C1 Homewood Suites - Portland Wachovia 4,750,000.00 MORT 20
542002C1 Homewood Suites - St. Louis Wachovia 4,750,000.00 MORT 20
562002C1 Xxxxxx Xxxx Apartments Wachovia 4,500,000.00 MORT 20
592002C1 Amaretto at North Tampa Wachovia 4,000,000.00 MORT 20
602002C1 West Indian Hills-PH III Wachovia 4,000,000.00 MORT 20
612002C1 Lake in the Xxxxx Apartments Wachovia 4,000,000.00 MORT 20
622002C1 Radisson Summit Hill Wachovia 4,000,000.00 MORT 20
632002C1 St. Mary's Shopping Center Wachovia 3,920,000.00 MORT 20
672002C1 Vidalia Shopping Center Wachovia 3,640,000.00 MORT 20
752002C1 PerkinElmer, Inc. - Beltsville, MD Wachovia 2,701,000.00 MORT 20
802002C1 South Hills Apartments Wachovia 2,300,000.00 MORT 20
842002C1 Xxxxxxxxx Alley Wachovia 2,100,000.00 MORT 20
862002C1 Western Heights Wachovia 2,063,000.00 MORT 20
872002C1 Park Village Shopping Center Wachovia 2,025,000.00 MORT 20
952002C1 Xxxxxxxx Commerce Center Wachovia 1,680,000.00 MORT 20
962002C1 CVS - Xxxx, IN Wachovia 1,626,148.26 MORT 20
972002C1 PerkinElmer, Inc. - Daytona Beach, FL Wachovia 1,455,000.00 MORT 20
0000000X0 PerkinElmer, Inc. - Xxxxxx, NY Wachovia 952,500.00 MORT 20
562002C1 Xxxxxx Xxxx Apartments Wachovia 4,500,000.00 NOTE 10
592002C1 Amaretto at North Tampa Wachovia 4,000,000.00 NOTE 10
802002C1 South Hills Apartments Wachovia 2,300,000.00 NOTE 13
1022002C1 The Palms North Apartments Wachovia 1,200,000.00 NOTE 13
52002C1 Transpark Business Center Wachovia 20,250,000.00 NOTE 22
112002C1 Summer Club Apartments Wachovia 16,240,000.00 NOTE 22
1022002C1 The Palms North Apartments Wachovia 1,200,000.00 NOTE 22
(TABLE CONTINUED)
COLLATERAL ID EXCEPTION DESCRIPTION NOTATION
------------- --------------------- --------
432002C1 MISSING
302002C1 MISSING LOC TRANSFER MISSING: 2- LOC'S: # SM419221C & #SM419222C
432002C1 MISSING TRANSFER OF LOC MISSING
12002C1 UNRECORDED ORIGINAL
152002C1 UNRECORDED ORIGINAL SECOND AMENDMENT TO MTG AND OTHER RECORDED DOCUMENTS
172002C1 UNRECORDED ORIGINAL CONSOLIDATION,AMENDMENT AND RESTATEMENT OF MORTGAGE
222002C1 UNRECORDED ORIGINAL
252002C1 UNRECORDED ORIGINAL
302002C1 UNRECORDED ORIGINAL
432002C1 UNRECORDED ORIGINAL
502002C1 UNRECORDED ORIGINAL
582002C1 UNRECORDED ORIGINAL
932002C1 UNRECORDED ORIGINAL
582002C1 NOTARY, ACKNOWLEDGMENT, OR WITNESS INFORMATION IS MISSING NOTARY PAGE FAXED COPY
572002C1 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
192002C1 UNRECORDED ORIGINAL
332002C1 UNRECORDED ORIGINAL
342002C1 UNRECORDED ORIGINAL
412002C1 UNRECORDED ORIGINAL
482002C1 UNRECORDED ORIGINAL
492002C1 UNRECORDED ORIGINAL
652002C1 UNRECORDED ORIGINAL
792002C1 UNRECORDED ORIGINAL
832002C1 UNRECORDED ORIGINAL
892002C1 UNRECORDED ORIGINAL
1052002C1 UNRECORDED ORIGINAL
00X0000X0 UNRECORDED ORIGINAL
41B2002C1 UNRECORDED ORIGINAL
852002C1 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
32002C1 UNRECORDED ORIGINAL
52002C1 UNRECORDED ORIGINAL
82002C1 UNRECORDED ORIGINAL
102002C1 UNRECORDED ORIGINAL
182002C1 UNRECORDED ORIGINAL
212002C1 UNRECORDED ORIGINAL
242002C1 UNRECORDED ORIGINAL
272002C1 UNRECORDED ORIGINAL
392002C1 UNRECORDED ORIGINAL
402002C1 UNRECORDED ORIGINAL
442002C1 UNRECORDED ORIGINAL
472002C1 UNRECORDED ORIGINAL
4A2002C1 UNRECORDED ORIGINAL
4B2002C1 UNRECORDED ORIGINAL
4C2002C1 UNRECORDED ORIGINAL
4D2002C1 UNRECORDED ORIGINAL
4E2002C1 UNRECORDED ORIGINAL
4F2002C1 UNRECORDED ORIGINAL
4G2002C1 UNRECORDED ORIGINAL
4H2002C1 UNRECORDED ORIGINAL
4I2002C1 UNRECORDED ORIGINAL
4J2002C1 UNRECORDED ORIGINAL
4K2002C1 UNRECORDED ORIGINAL
4L2002C1 UNRECORDED ORIGINAL
4M2002C1 UNRECORDED ORIGINAL
4N2002C1 UNRECORDED ORIGINAL
532002C1 UNRECORDED ORIGINAL
542002C1 UNRECORDED ORIGINAL
562002C1 UNRECORDED ORIGINAL
592002C1 UNRECORDED ORIGINAL
602002C1 UNRECORDED ORIGINAL
612002C1 UNRECORDED ORIGINAL
622002C1 UNRECORDED ORIGINAL
632002C1 UNRECORDED ORIGINAL
672002C1 UNRECORDED ORIGINAL
752002C1 UNRECORDED ORIGINAL
802002C1 UNRECORDED ORIGINAL
842002C1 UNRECORDED ORIGINAL
862002C1 UNRECORDED ORIGINAL
872002C1 UNRECORDED ORIGINAL
952002C1 UNRECORDED ORIGINAL
962002C1 UNRECORDED ORIGINAL
972002C1 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
562002C1 INTEREST RATE DOES NOT AGREE WITH SCHEDULE NOTE: 7.82 % ;SCH: 7.700%
592002C1 INTEREST RATE DOES NOT AGREE WITH SCHEDULE NOTE: 7.35% ;SCH: 7.38%
802002C1 DATE OF LAST PAYMENT DOES NOT AGREE WITH SCHEDULE FILE 11-1-11 SCHD 12-1-11
1022002C1 DATE OF LAST PAYMENT DOES NOT AGREE WITH SCHEDULE NOTE: 04/01/11 ;SCH: 05/01/11
52002C1 ENDORSEMENT(S) IS MISSING/INCORRECT FUNB TO BLANK SENT FOR EXECUTION
112002C1 ENDORSEMENT(S) IS MISSING/INCORRECT FUNB TO XXXXX; MISSING
1022002C1 ENDORSEMENT(S) IS MISSING/INCORRECT FUNB TO BLANK UNEXECUTED
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
German American Capital Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
First Union Commercial Mortgage Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
First Union National Bank
0000 Xxxxxxxx Xxxxx - URP4, NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2002-C1
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Re: First Union National Bank Commercial Mortgage Trust Commercial
Mortgage Pass-Through Certificates, Series 2002-C1
Ladies and Gentlemen:
Xxxxx Fargo Bank Minnesota, N.A., as Trustee, hereby certifies to the above
referenced parties that, with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (i), (ii), (iv)(a), (v)
and (vii), and to the extent provided in the related Mortgage File and actually
known by a Responsible Officer of the Trustee to be required, clauses (iii),
(iv)(b), (iv)(c), (vi), (viii) and (ix) of the definition of "Mortgage File" are
in its possession, (ii) all documents delivered or caused to be delivered by the
applicable Mortgage Loan Seller constituting the related Mortgage File have been
reviewed by it and appear regular on their face and appear to relate to such
Mortgage Loan, (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule for such
Mortgage Loan with respect to the items specified in clauses (v) and (vi)(c) of
the definition of "Mortgage Loan Schedule" is correct and (iv) solely with
respect to the Companion Loans, all documents specified in clause (xiii) of the
definition of Mortgage File are in its possession.
None of the Trustee, the Master Servicer, the Special Servicer or any Custodian
is under any duty or obligation to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, enforceable, in recordable form, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them under the Pooling and Servicing Agreement.
Respectfully,
Name:
--------------------------------
Title:
--------------------------------
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate Trust Services (CMBS)-Mortgage Document Custody
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of
February 10, 2002 (the "Pooling and Servicing Agreement"), by and among First
Union Commercial Mortgage Securities, Inc., as Depositor, First Union National
Bank, as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, LaSalle Bank National Association, as Paying Agent, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
____________________________________
____________________________________
____________________________________
Attn: ______________________________
Phone:______________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be credited
to the Certificate Account pursuant to the Pooling and Servicing
Agreement have been or will be so credited.
_____ 2. Other. (Describe)
______________________________________________________________
______________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
FIRST UNION NATIONAL BANK,
as Master Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxx Xxxxxx.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate Trust Services (CMBS)-Mortgage Document Custody
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of
February 10, 2002 (the "Pooling and Servicing Agreement"), by and among First
Union Commercial Mortgage Securities, Inc., as Depositor, First Union National
Bank, as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, LaSalle Bank National Association, as Paying Agent, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
____________________________________
____________________________________
____________________________________
Attn: ______________________________
Phone:______________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. The Mortgage Loan is being foreclosed.
______2. Other. (Describe)
______________________________________________________________
______________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Cash Flow" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
replacement reserves and an allowance for vacancies and credit losses. Net Cash
Flow does not reflect interest expenses and non-cash items such as depreciation
and amortization, and generally does not reflect capital expenditures, but does
reflect reserves for replacements and an allowance for vacancies and credit
losses.
In determining vacancy for the "revenue" component of Net Cash Flow
for each Rental Property, the Special Servicer shall rely on the most recent
rent roll supplied by the related borrower and where the actual vacancy shown
thereon and the market vacancy is less than 1%, the Special Servicer shall
assume a 1% vacancy in determining revenue from rents, except that in the case
of certain anchored shopping centers, space occupied by anchor or single tenants
or other large tenants shall be disregarded in performing the vacancy adjustment
due to the length of the related leases or creditworthiness of such tenants, in
accordance with the respective Mortgage Loan Seller's underwriting standards.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, and (b) historical vacancy at comparable properties in the
same market as the related Mortgaged Property. In determining rental revenue for
multifamily, self-storage and mobile home park properties, the Special Servicer
shall either review rental revenue shown on the certified rolling 12-month
operating statements or annualized the rental revenue and reimbursement of
expenses shown on rent rolls or operating statements with respect to the prior
one to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent certified rent
roll, after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average occupancy not to exceed 75.0% and daily rates achieved during
the prior two to three year annual reporting period. In the case of residential
health care facilities, receipts shall be based on historical occupancy levels,
historical operating revenues and the then current occupancy rates. Occupancy
rates for private health care facilities shall be within current market ranges
and vacancy levels shall be at a minimum of 1%. In general, any non-recurring
items and non-property related revenue shall be eliminated from the calculation
except in the case of residential health care facilities.
In determining the "expense" component of Net Cash Flow for each
Mortgaged Property, the Special Servicer shall rely on the rolling 12-month
operating statements and/or full-year or year-to-date financial statements
supplied by the related borrower, except that (a) if tax or insurance expense
information more current than that reflected in the financial statements is
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.1% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be assumed and, with respect to single tenant properties, where fees as low as
3% of effective gross receipts shall be assumed), (c) assumptions shall be made
with respect to reserves for leasing commission, tenant improvement expenses and
capital expenditures and (d) expenses shall be assumed to include annual
replacement reserves. In addition, in some instances, the Special Servicer may
recharacterize as capital expenditures those items reported by borrowers as
operating expenses (thus increasing "net cash flow") where determined
appropriate.
EXHIBIT F
UPDATED COLLECTION REPORT
Servicer
First Union 2002-C1
For the Collection Period Ending:
Master Servicer Remittance Date
UPDATED COLLECTION REPORT
PROSPECTUS PRIMARY SCHEDULED SCHEDULED CURRENT CURRENT PAID TO DATE
PRIMARY LOAN LOAN PRINCIPAL INTEREST PRINCIPAL INTEREST AT
SERVICER ID NUMBER NUMBER AMOUNT AMOUNT ADVANCE ADVANCE DETERMINATION
------------ ---------- --------- ----------- ----------- --------- ----------- -------------
UPDATED COLLECTION REPORT (continued)
UPDATED PRIMARY SUB MASTER
PRIMARY PAID TO SERVICER SERVICER SERVICER RETAINED NET
SERVICER ID DATE FEES FEES FEES FEES ADVANCE
------------ ---------- --------- --------- --------- ---------- ---------
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group- First Union Commercial
Securities, Inc., Series 2002 C-1
Re: First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002-C1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of February 25, 2002 (the "Closing
Date") of $_____________ evidencing a __% percentage interest in the Class to
which it belongs. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
February 10, 2002, among First Union Commercial Mortgage Securities, Inc., as
depositor, First Union National Bank, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, LaSalle Bank National Association, as
paying agent, and Xxxxx Fargo Bank Minnesota, N.A., as trustee. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy
or accepted a transfer, pledge or other disposition of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of any Certificate under
the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Certificate a violation of Section
5 of the Securities Act or any state securities laws, or would require
registration or qualification of any Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
_________________________________________
(Transferor)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group-First Union
Commercial Mortgage Securities, Inc., Series 2002 C-1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of February 25, 2002 (the "Closing
Date") of $_____________ evidencing a __% percentage interest in the Class to
which it belongs. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
February 10, 2002, among First Union Commercial Mortgage Securities, Inc., as
depositor, First Union National Bank, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, LaSalle Bank National Association, as
paying agent, and Xxxxx Fargo Bank Minnesota, N.A., as trustee . All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended (the "Securities Act") and has completed one of the
forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in
reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificate for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be
resold, pledged or transferred only (i) to a person reasonably
believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. In the case of a Class A-1, Class A-2, Class B, Class C, Class
D, Class E, Class F, Class G, Class IO-I or Class IO-II Certificates,
the Transferee either (A) is not an "employee benefit plan" subject to
ERISA or a "plan" described by Section 4975(e)(1) of the Code or any
other retirement plan or other employee benefit plan or arrangement
subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA and the Code, or any entity deemed to
hold plan assets of the foregoing by reason of a plan's investment in
such entity (each, a "Plan") or (B) (1) qualifies as an accredited
investor as defined in Rule 501(a)(1) of Regulation D under the
Securities Act and satisfies all the requirements of the Exemption as
in effect at the time of such transfer or (2) is an insurance company
general account that is eligible for, and satisfies all of the
requirements of, Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60").
In the case of a Class H, Class J, Class K, Class L, Class M,
Class N or Class O Certificate, the Transferee either (A) is not an
"employee benefit plan" subject to Title I of ERISA or a "plan"
described by Section 4975(e)(1) of the Code or any other retirement
plan or other employee benefit plan or arrangement subject to any
federal, state or local law materially similar to the foregoing
provisions of ERISA and the Code, or any entity deemed to hold plan
assets of the foregoing by reason of a plan's investment in such
entity (each, a "Plan") or (B) is an insurance company general account
which is eligible for, and satisfies all of the requirements for,
exemptive relief under Sections I and III of Department of Labor
Prohibited Transaction Class Exemption 95-60 ("PTE 95-60").
3. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Certificates, that it has requested.
4. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement, which provisions it has carefully
reviewed, and that the Transferred Certificate will bear legends
substantially to the following effect:
[In the case of the Unregistered Certificates]: THE CERTIFICATE HAS
NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class R-I, Class R-II or Class Z Certificates]: NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO
ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND
THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY
REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH
PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED
THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Class H, Class J, Class K, Class L, Class M, Class N
or Class O Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") OR A "PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY OTHER
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT
TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN
ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY GENERAL
ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTION SECTIONS I AND III OF DEPARTMENT
OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT
WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy
or accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a
distribution of any Certificate under the Securities Act, would render
the disposition of any Certificate a violation of Section 5 of the
Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
Very truly yours,
_________________________________
(Transferee)
By: ____________________________
Name:_______________________
Title:______________________
ANNEX 1 TO EXHIBIT G2
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 LaSalle Bank National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Transferee owned and/or invested on a discretionary basis
$____________ / _____________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) [Transferee must own
and/or invest on a discretionary basis at least $100,000,000 in securities
unless Transferee is a dealer, and, in that case, Transferee must own and/or
invest on, a discretionary basis at least $10,000,000 in securities.] and (ii)
the Transferee satisfies the criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
________ ________ Will the Transferee be purchasing
Yes No the Transferred Certificate only
for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
Print Name of Transferee
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
Date:______________________________________
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and LaSalle Bank National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933 ("Rule 144A") because the Transferee
is part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis $
in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
In the case of a Class R-I, Class R-II or Class Z Certificate, the
Transferee is not an "employee benefit plan" subject to Title I of ERISA or a
"plan" described by Section 4975(e)(1) of the Code or any other retirement plan
or other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan").
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
________ ________ Will the Transferee be purchasing
Yes No the Transferred Certificate only
for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
Print Name of Transferee or Adviser
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group-First Union
Commercial Mortgage Securities, Inc., Series 2002-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of February 25, 2002 (the "Closing
Date") of $_____________ evidencing a __% percentage interest in the Class to
which it belongs. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
February 10, 2002, among First Union Commercial Mortgage Securities, Inc., as
depositor (the "Depositor"), First Union National Bank, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as paying agent, and Xxxxx Fargo Bank Minnesota, N.A., as trustee .
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee or the Certificate Registrar is obligated so to register or
qualify the Certificates and (c) the Certificates may not be resold or
transferred unless they are (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or (ii)
sold or transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either (A)
certifications from both the transferor and the transferee (substantially in the
forms attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with
copies of the certification(s) from the Transferor and/or Transferee setting
forth the facts surrounding the transfer upon which such opinion is based. Any
holder of a Certificate desiring to effect such a transfer shall, and upon
acquisition of such Certificate shall be deemed to have agreed to, indemnify the
Trustee, the Certificate Registrar and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the Transferred
Certificate will bear legends substantially to the following effect:
[In the case of Unregistered Certificates]: THE CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class R-I, Class R-II or Class Z Certificates]: NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Class H, Class J, Class K, Class L, Class M, Class N
or Class O Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR A
"PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH
IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF
UNDER SECTION SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Certificates and distributions thereon, (c) the
Pooling and Servicing Agreement, and (d) all related matters, that it has
requested.
6. The Transferee has been furnished a copy of the Private Placement
Memorandum dated February 20, 2002 and has read such Private Placement
Memorandum.
7. The Transferee is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Certificates; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
8. In the case of Class E, Class F, Class G, Class IO-I or Class
IO-II Certificates, the Transferee either (A) is not an "employee benefit plan"
subject to ERISA or a "plan" described by Section 4975(e)(1) of the Code or any
other retirement plan or other employee benefit plan or arrangement subject to
any federal, state or local law materially similar to the foregoing provisions
of ERISA and the Code, or any entity deemed to hold plan assets of the foregoing
by reason of a plan's investment in such entity (each, a "Plan") or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and satisfies all the requirements of the Exemption as
in effect at the time of such transfer or (2) is an insurance company general
account that is eligible for, and satisfies all of the requirements for,
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
95-60 ("PTE 95-60"). In the case of Class H, Class J, Class K, Class L, Class M,
Class N and Class O Certificates, the Transferee either (A) is not an "employee
benefit plan" subject to Title I of ERISA or a "plan" described by Section
4975(e)(1) of the Code, or any other retirement plan or other employee benefit
plan or arrangement subject to any federal, state or local law materially
similar to the foregoing provisions of ERISA and the Code, or any entity deemed
to hold plan assets of the foregoing by reason of a plan's investment in such
entity (each, a "Plan") or (B) is an insurance company general account which is
eligible for, and satisfies all of the requirements for, exemptive relief under
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
("PTE 95-60").
Very truly yours,
________________________________________________
(Transferee)
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
EXHIBIT H
FORM OF PROSPECTIVE TRANSFEREE CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group-First Union
Commercial Mortgage Securities, Inc., Series 2002-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") having an initial [principal balance] [notional amount] as of
February 25, 2002 (the "Closing Date") of $_____________ evidencing a __%
interest in the Classes to which they belong. The Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of February 10, 2002
(the "Pooling and Servicing Agreement"), among First Union Commercial Mortgage
Securities, Inc., as depositor, First Union National Bank, as master servicer,
GMAC Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as paying agent, and Xxxxx Fargo Bank Minnesota, N.A., as trustee
(the "Trustee"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you that:
In the case of a Class A-1, Class A-2, Class B, Class C, Class D,
Class E, Class F, Class G, Class IO-I or Class IO-II Certificate, the Transferee
either (A) is not an "employee benefit plan" subject to ERISA or a "plan"
described by Section 4975(e)(1) of the Code or any other retirement plan or
other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan") or (B) (1) qualifies as an accredited
investor as defined in Rule 501(a)(1) of Regulation D under the Securities Act
and satisfies all the requirements of the Exemption as in effect at the time of
such transfer or (2) is an insurance company general account that is eligible
for, and satisfies all of the requirements for, Sections I and III of Department
of Labor Prohibited Transaction Class Exemption 95-60 ("PTE 95-60").
In the case of a Class H, Class J, Class K, Class L, Class M, Class
N or Class O Certificate, the Transferee either (A) is not an "employee benefit
plan" subject to Title I of ERISA or a "plan" described by Section 4975(e)(1) of
the Code, or any other retirement plan or other employee benefit plan or
arrangement subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA and the Code, or any entity deemed to hold plan
assets of the foregoing by reason of a plan's investment in such entity (each, a
"Plan") or (B) (1) is an insurance company general account which is eligible
for, and satisfies all of the requirements for, exemptive relief under Sections
I and III of Department of Labor Prohibited Transaction Class Exemption 95-60
("PTE 95-60") or (2) has provided a certification of facts and Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee, Trust
or Certificate Registrar) on which the Trustee may conclusively rely, that such
transfer will not result in the imposition of an excise tax under Section 4975
of the Code.
In the case of a Class R-I, Class R-II or Class Z Certificate, the
Transferee is not an "employee benefit plan" subject to Title I of ERISA or a
"plan" described by Section 4975(e)(1) of the Code or any other retirement plan
or other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan").
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
_______________________________________________
[Name of Transferee]
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(2)
STATE OF NEW YORK_____)
) ss.:
COUNTY OF NEW YORK____)
[NAME OF OFFICER], being first duly sworn, deposes, and
represents and warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the
"Owner"), a corporation duly organized and existing under the laws of
the [State of ___________] [the United States], and the owner of the
First Union Commercial Mortgage Securities, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-C1, Class [R-I] [R-II]
evidencing a ___% Percentage Interest in the Class to which its
belongs (the "Class [R-I] [R-II]"). Capitalized terms used but not
defined herein have the meanings assigned to such terms in the Pooling
and Servicing Agreement dated as of February 10, 2002, among First
Union Commercial Mortgage Securities, Inc., as Depositor, First Union
National Bank, as Master Servicer, GMAC Commercial Mortgage
Corporation, as Special Servicer, LaSalle Bank National Association,
as Paying Agent and Xxxxx Fargo Bank Minnesota, N.A., as Trustee.
2. That the Owner (i) is and will be a "Permitted Transferee" as
of ________, _______ and (ii) is acquiring the Class [R-I] [R-II]
Certificates for its own account or for the account of another Owner
from which it has received an affidavit in substantially the same form
as this affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization", a Plan or a Non-United States Person. For
this purpose, a "disqualified organization" means any of the
following: (i) the United States or a possession thereof, any State or
any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a
corporation if all of its activities are subject to tax and, except of
the FHLMC, a majority of its board of directors is not selected by
such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Internal Revenue Code of
1986, as amended (the "Code")) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable
income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code or (v) any other Person so designated by the
Paying Agent or Certificate Registrar based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class [R-I] [R-II]
Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of
an Ownership Interest in a Class [R-I] [R-II] Certificate to such
Person. The terms "United States", "State" and "international
organization" shall have the meanings set forth in Section 7701 of the
Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the
United States, a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax
purposes) created or organized in, or under the laws of the United
States, any State or the District of Columbia unless, in the case of a
partnership, Treasury Regulations are adopted that provide otherwise,
an estate whose income is includable in gross income for United States
federal tax income purposes regardless of its source, or a trust if a
court within the United States is able to exercise primary supervision
over the administration of the trust and one or more United States
Persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
3. That the Owner is aware (i) of the tax that would be imposed
on transfers of the Class [R-I] [R-II] Certificates to disqualified
organizations under the Code that applies to all transfers of the
Class [R-I] [R-II] Certificates after March 31, 1988; (ii) that such
tax would be on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
disqualified organization Transferee, on the agent; (iii) that the
person otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that
the transferee is not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the
affidavit is false; and (iv) that the Class [R-I] [R-II] Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulation section 1.860E-1(c)(2) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due
with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to
impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I] [R-II] Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted
Transferee is the record holder of an interest in such entity. For
this purpose, a "pass through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives.
5. That the Owner is aware that the Certificate Registrar will
not register the transfer of any Class [R-I] [R-II] Certificate unless
the transferee, or the transferee's agent, delivers to the Trustee,
among other things, an affidavit in substantially the same form as
this affidavit. The Owner expressly agrees that it will not consummate
any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I]
[R-II] Certificates will only be owned, directly or indirectly, by
Permitted Transferees.
7. That the Owner's taxpayer identification number is
_____________.
8. That the Owner has reviewed the restrictions set forth on the
face of the Class [R-I] [R-II] Certificates and the provisions of
Section 5.02 of the Pooling and Servicing Agreement under which the
Class [R-I] [R-II] Certificates were issued (and, in particular, the
Owner is aware that such Section authorizes the Trustee to deliver
payments to a person other than the Owner and negotiate a mandatory
sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02); and that the Owner expressly agrees to
be bound by and to comply with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the
Class [R-I] [R-II] Certificates in order to impede the assessment or
collection of any tax.
10. That the Owner has historically paid its debts as they have
come due, intends to continue to pay its debts as they come due in the
future, and anticipates that it will, so long as it holds any of the
Class [R-I] [R-II] Certificates, have sufficient assets to pay any
taxes owed by the holder of such Class [R-I] [R-II] Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it
holds any of the Class [R-I] [R-II] Certificates.
12. That the Owner has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as
any of the Certificates remain outstanding. In this regard, the Owner
hereby represents to and for the benefit of the Person from whom it
acquired the Class [R-I] [R-II] Certificates that the Owner intends to
pay taxes associated with holding the Class [R-I] [R-II] Certificates
as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class [R-I]
[R-II] Certificates.
13. That the Owner is not acquiring the Class [R-I] [R-II]
Certificates with the intent to transfer any of the Class [R-I] [R-II]
Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Class [R-I] [R-II]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I] [R-II] Certificates remain
outstanding.
14. That the Owner will, in connection with any transfer that it
makes of the Class [R-I] [R-II] Certificates, obtain from its
transferee the representations required by Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class [R-I] [R-II]
Certificates were issued and will not consummate any such transfer if
it knows, or knows facts that should lead it to believe, that any such
representations are false.
15. That the Owner will, in connection with any transfer that it
makes of any Class [R-I] [R-II] Certificate, deliver to the
Certificate Registrar an affidavit, which represents and warrants that
it is not transferring such Class [R-I] [R-II] Certificate to impede
the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to
pay any taxes owed by such transferee as holder of such Class [R-I]
[R-II] Certificate; (ii) may become insolvent or subject to a
bankruptcy proceeding, for so long as the Class [R-I] [R-II]
Certificates remain outstanding; and (iii) is not a "Permitted
Transferee".
16. *[The Owner has computed any consideration paid to it to
acquire the Class [R-I] [R-II] Certificate in accordance with proposed
U.S. Treasury Regulations Sections 1.860E-1(a)(4)(iii) and
1.860E-1(c)(5) (or, after they have been finalized, the final
regulations) by computing present values using a discount rate equal
to the applicable Federal Rate prescribed by Section 1274(d) of the
Code, compounded semi-annually.]
[The Owner has computed any consideration paid to it to acquire
the Class [R-I] [R-II] Certificate in accordance with the proposed
U.S. Treasury Regulations Sections 1.860E-1(a)(4)(iii) and
1.860E-1(c)(5) (or, after they have been finalized, the final
regulations) by computing present values using a discount rate at
least equal to the rate at which the Owner regularly borrows, in the
ordinary course of its trade or business, substantial funds from
unrelated third parties. The Owner has provided all information
necessary to demonstrate to the transferor that it regularly borrows
at such rate.]
[The transfer of the Class [R-I] [R-II] Certificate complies with
Section 6 of Revenue Procedure 2001-12 (the "Revenue Procedure"),
2001-3 I.R.B. 335 (January 16, 2001) (or comparable provisions of
applicable final U.S. Treasury Regulations) and, accordingly,
(i) the Owner is an "eligible corporation," as defined in
Section 860L(a)(2) of the Code, as to which income from
Class [R-I] [R-II] Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the Owner's
two fiscal years preceding the year of the transfer, the
Owner had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Owner
within the meaning of Section 860L(g) of the Code) in excess
of the $100 million and net assets in excess of $10 million;
(iii) the Owner will transfer the Class [R-I] [R-II] Certificate
only to another "eligible corporation," as defined in
Section 860(a)(2) of the Code, in a transaction that
satisfies the requirements of Section 4 of the Revenue
Procedure; and
(iv) the Owner determined the consideration paid to it to acquire
the Class [R-I] [R-II] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other
factors specific to the Owner) that it has determined in
good faith.]
[RESERVED]
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, by its [Title of Officer] and Authorized Signatory,
attested by its Assistant Secretary, this ____ day of _____, ___.
[NAME OF OWNER]
By: _____________________________
[Name of Officer]
[Title of Officer]
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be [Title of Officer], and acknowledged to me that he executed
the same as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____, _____.
____________________________________________
NOTARY PUBLIC
COUNTY OF __________________________________
STATE OF ___________________________________
My Commission expires the
____ day of ___________, ____.
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(4)
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group-First Union
Commercial Mortgage Securities, Inc., Series 2002-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-C1, Class [R-I] [R-II], evidencing a ____%
percentage interest in the Class to which they belong
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________ (the "Transferor") to ______________________ (the "Transferee") of the
captioned Class [R-I] [R-II] Certificates (the "Class [R-I] [R-II]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of February 10, 2002, among
First Union Commercial Mortgage Securities, Inc., as depositor, First Union
National Bank, as master servicer, GMAC Commercial Mortgage Corporation, as
special servicer, LaSalle Bank National Association, as paying agent, and Xxxxx
Fargo Bank Minnesota, N.A., as trustee . All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Class [R-I] [R-II] Certificates by the Transferor to the Transferee is
or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit I-1. The Transferor does
not know or believe that any representation contained therein is
false.
3. The Transferor at the time of this transfer either (i) has
conducted a reasonable investigation of the financial condition of the
Transferee as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and, as a result of that investigation, the
Transferor has determined that the Transferee has historically paid
its debts as they became due and has found no significant evidence to
indicate that the Transferee will not continue to pay its debts as
they become due in the future.
4. The Transferor understands that the transfer of the Class
[R-I] [R-II] Certificates may not be respected for United States
income tax purposes (and the Transferor may continue to be liable for
United States income taxes associated therewith) unless one of the
safe harbors described above in Revenue Procedure 2001-12, 2001-3
I.R.B. 335 (January 16, 2001) have been met as to any transfer.
Very truly yours,
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
EXHIBIT J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement dated as of February 10, 2002 relating to First
Union National Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-C1 (the "Agreement"). Any term with initial capital
letters not otherwise defined in this notice has the meaning given such term in
the Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated ___________________ to serve as the Special Servicer under the
Agreement.
The designation of ____________________ as Special Servicer will
become final if certain conditions are met and on the date you will deliver to
Xxxxx Fargo Bank Minnesota, N.A., the trustee under the Agreement (the
"Trustee"), a written confirmation stating that the appointment of the person
designated to become the Special Servicer will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
XXXXX FARGO BANK MINNESOTA, N.A.
By: _____________________________
Title:_______________________
Receipt and acknowledged:
Standard & Poor's Rating Services Xxxxx'x Investors Service, Inc.
By: __________________________ By: ____________________________
Title: ________________________ Title: _________________________
Date: ________________________ Date: __________________________
EXHIBIT J-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
Xxxxx Fargo Bank Minnesota, N.A
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: First Union National Bank, Series 2002-C1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement
dated as of February 10, 2002 relating to First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-C1
(the "Agreement"), the undersigned hereby agrees with all the other parties to
the Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.23(b) of the Agreement as if it were the
Special Servicer thereunder.
__________________________________________________
By: ______________________________________________
Name: ________________________________________
Title: _______________________________________
EXHIBIT K
FORM OF CMSA PROPERTY FILE REPORT
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
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SPECIFICATION DESCRIPTION/COMMENTS
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Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
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FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
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Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each
Collateral Item In A Xxxx X0, X0
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Propectus S4, L4
Property ID 4 AN 1001-001 Should contain Prospectus ID and property identifier,
e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Crossed, For
example : "X02-1" would be populated in this field
for all related loans, "X02-2" would be populated
for the next group of related loans. S75
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial Release,
5= Released, 6= Same as at Contribution
Allocated Percentage of Loan at
Contribution 19 Numeric 0.75 Issuer to allocate loan % attributable to property
for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by
Issuer or Underwriter, use Underwritting NOI or
NCF to calculate
Current Allocated Ending Scheduled
Loan Amount 21 Numeric 5900900.00 Calculation based on Current Allocated Percentage
and Current Ending ScL7duled Principal Balance
(L7) for associated loan. L7
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No ground lease S74
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental.
(Excludes Tax & Insurance Escrows). An amount
should be printed if the value in Setup File
field 77 is "Y" S77
Most Recent Appraisal Date 24 AN YYYYMMDD L74
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
Date Asset Expected to Be Resolved
or Foreclosed 26 AN YYYYMMDD Could be different dates for different properties. L79
If in Foreclosure - Expected Date of Foreclosure
and if REO - Expected Sale Date.
Foreclosure Date 27 AN YYYYMMDD L42
REO Date 28 AN YYYYMMDD L43
Most Recent Physical Occupancy 29 Numeric 0.75 X00
Xxxxxxxxx As of Date 30 AN YYYYMMDD Typically should be the effective date of the
Rent Roll
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, XX, XX X00
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, XX, XX X00
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, XX, XX X00
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, XX, XX X00
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or Mixed
Use, as applicable
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example : "12"
Contribution Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S70
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S71
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level S65
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
Appraisal Date At Contribution 50 AN YYYYMMDD S68
Physical Occupancy At Contribution 51 Numeric 0.9 S69
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD L58
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00 L53
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated
amount for each property L55
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt service
amount L56
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9 L57
Second Preceding FY Financial As of Date 60 AN YYYYMMDD L65
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00 L59
Second Preceding FY Operating Expenses 62 Numeric 1000000.00 L60
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated L62
amount for each property
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3 Uses the property NOI and the allocated debt service
amount
Second Preceding FY Physical Occupancy 66 Numeric 0.9 L64
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to get the allocated
amount for each property L69
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt
service amount L70
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most Recent information
either YTD or trailng 12 months L72
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most Recent information
either YTD or trailing 12 months L73
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match the
prospectus if available. S83
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate.
Should match the prospectus if available. S84
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to
Financial As of Date P53. L92
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date P53. L93
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow related
to Financial As of Date P60. L94
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage
Ratio using Net Cash Flow related to Financial
As of Date P60. L95
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As
of Date P74. L96
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of Date P74. L97
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial period.
See NOI/NCF Indicator Legend. L90
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
----------------------------------- ------------------------------------------------------------------------------------
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
----------------------------------- ------------------------------------------------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
RT Retail PSA Calculated using a definition given in the PSA
HC Health Care U/W Calculated using the underwriting method
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
SE Securities
EXHIBIT L
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
CSMA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
as of _______________________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI_____ or NCF ______
------------------------------------------------------------------------------
P4 P9 P10 P52 P21 L8 P57
-------- ------- ------ ---------- ---------- ------- -----------
Last Current Allocated
Property Allocated Paid Annual
Property Inspection Loan Thru Debt
ID City State Date Amount Date Service
-------- ------- ------ ---------- ---------- ------- -----------
yyyymmdd
List all properties currently in deal with or without information largest
to smallest loan
This report should reflect the information provided in the CMSA Property
File and CMSA Loan Periodic Update File.
Total $ $
------------------------------------------------------------------------------
Operating Information Reflected As NOI____ or NCF______
------------------------------------------------------------------------------
X00 X00 X00 XX X00 X00 XX X00
X00 ORIGINAL UNDERWRITING
BASE YEAR INFORMATION
------------ ------- ------------------------------------ -----------
Financial
Info as of % Total $ (1)
Date Occ Revenue NOI/NCF DSCR
------------ ------- -------- ---------------------- -----------
yyyymmdd
List all properties currently in deal with or without information largest
to smallest loan
This report should reflect the information provided in the CMSA Property
File and CMSA Loan Periodic Update File.
Total ** WA $ $ WA
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X00 X00 X00 X00 XX X00 X00 OR P81
------------ ------- -------- ----------------- -----------
2ND PRECEDING ANNUAL OPERATING
INFORMATION
AS OF _____ NORMALIZED
------------ ------- -------- ----------------- -----------
Financial
Info as of % Total $ (1)
Date Occ Revenue NOI/NCF DSCR
------------ ------- -------- ----------------- -----------
yyyymmdd
Total WA $ $ WA
------------------------------------------------------------------------------
X00 X00 X00 X00 XX X00 X00 OR P79
------------ ------- -------- ----------------- -----------
PRECEDING ANNUAL OPERATING
INFORMATION
AS OF______ NORMALIZED
------------ ------- -------- ----------------- -----------
Financial
Info as of % Total $ (1)
Date Occ Revenue NOI/NCF DSCR
------------ ------- -------- ----------------- -----------
yyyymmdd
Total WA $ $ WA
------------------------------------------------------------------------------
X00 X00 X00 X00 X00 X00 XX X00 X00 OR P83 (2)
---------- ---------- --------- -------- --------- ----------- ----------- ------------------------
MOST RECENT FINANCIAL NET CHANGE
INFORMATION
*NORMALIZED OR ACTUAL PRECEDING & BASIS
---------- ---------- --------- -------- --------- ----------- ----------- ------------------------
%
FS Start FS End Occ As of % Total $ (1) % Total (1)
Date Date Date Occ Revenue NOI/NCF DSCR Occ Revenue DSCR
---------- ---------- --------- -------- --------- ----------- ----------- ------------------------
yyyymmdd yyyymmdd yyyymmdd
Total WA $ $ WA WA $ WA
------------------------------------------------------------------------------------------------------------------
-----------------------------
(1) DSCR should match to Operating Statement Analysis Report and is normally calculated using NOI or NCF / Debt Service times
the allocated loan percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant and applicable.
EXHIBIT M
FORM OF REO STATUS REPORT
CSMA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
as of _______________________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI_____ or NCF _____
------------------------------------------------------------------------------------------------------------------------
P16
or
X0 X0 X00 X0 X00 X00 X0 X00 X00 L39
---------- ------------ --------- -------- ------ ------- ------ ----------- ----------- ------------
(a) (b) (c)
---------- ------------ --------- -------- ------- ------- ------ ------------ ----------- -----------
ALLOCATED
ENDING OTHER
SQ FT PAID SCHEDULED TOTAL P&I EXPENSE
PROPERTY PROPERTY PROPERTY CITY STATE OR THRU LOAN ADVANCES ADVANCE
ID NAME TYPE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING
---------- ------------ --------- -------- ------- ------- ------ ------------ ----------- -------------
--------------------------------------------------------------------------------------------------------------------
P58 or
X00/X00
X00 X00 X00 X00 xx X00 xx X00 X00 X00
------------ ----------- -------- ------ ---------- ---------- ----------- ----------- ----------
(d) (e)=a+b+c+d (f) (b)
------------ ----------- -------- ------- ---------- ---------- ------------ ----------- -----------
APPRAISAL
BPO OR
INTERNAL APPRAISAL
TOTAL T&I CURRENT LTM VALUE BPO OR
ADVANCE TOTAL MONTHLY MATURITY NOI/NCF LTM DSCR VALUATION SOURCE INTERNAL
OUTSTANDING EXPOSURE P&I DATE DATE (NOI/NCF) DATE (1) VALUE
------------ ----------- -------- ------- ---------- ---------- ------------ ----------- -----------
---------------------------------------------------------------------------------------------------------------------------------
X00 X00 X00 X00
--------------- ------------ ----------- ------------- ----------- ----------------
(h)=(.90*g)-e
--------------- ------------ ----------- ------------- ----------- -----------------
DATE
TOTAL ASSET
LOSS USING APPRAISAL REO EXPECTED
90% APPR. OR REDUCTION TRANSFER ACQUISITION TO BE
BPO (F) REALIZED DATE DATE RESOLVED COMMENTS
--------------- ------------ ----------- ------------- ----------- -----------------
---------------------
REO' s data reflected at the property level for relationships with more than one (1) property should use the Allocated Ending
Scheduled Loan Amount, and prorate all advances and expenses or other loan level data as appropriate.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
EXHIBIT N
FORM OF WATCH LIST
CSMA INVESTOR REPORTING PACKAGE
SERVICER WATCH LIST
AS OF _______________________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI______ or NCF________
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93 L70/L97
---------- -------- -------- ---- ----- ---------------- --------- -------- -------------------- ------------ --------------
PROSPECTUS PROPERTY PROPERTY ENDING SCHEDULED PAID MATURITY PRECEDING FISCAL YR. MOST RECENT COMMENT/ACTION
LOAN ID NAME TYPE CITY STATE LOAN BALANCE THRU DATE DATE DSCR NOI/NCF DSCR NOI/NCF TO BE TAKEN
---------- -------- -------- ---- ----- ---------------- --------- -------- -------------------- ------------ --------------
List all loans on watch list in descending balance order.
Comment section should include reason and other pertinent information.
Should not include loans that are specially serviced.
WATCH LIST SELECTION CRITERIA SHOULD BE FOOTNOTED ON THE REPORT. THE CRITERIA
MAY BE DICTATED AS PER THE PSA OR THE SERVICER'S INTERNAL POLICY.
Total: $
EXHIBIT O
FORM OF DELINQUENT LOAN STATUS REPORT
CSMA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF _______________________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI ____ or NCF ____
S4 S55 S61 S57 S58 S62 OR S63 L8 L7 L37 L39
------------- -------- -------- ---- ----- ---------- --------- ---------------- -------------------- -------------------
LOAN PROPERTY PROPERTY SQ FT OR PAID ENDING SCHEDULED TOTAL P&I OTHER EXPENSE
PROSPECTUS ID NAME TYPE CITY STATE UNITS THRU DATE LOAN BALANCE ADVANCES OUTSTANDING ADVANCE OUTSTANDING
------------- -------- -------- ---- ----- ---------- --------- ---------------- -------------------- -------------------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
L54 OR L56 OR
L38 L25 L10 L11 L58 OR L73 L68/L92 OR L70/L93 OR
L96 L97
-------------------- ----------- ----------- ------------- -------- ----------- ---------- ----------
TOTAL T & I Total Current Current Maturity LTM NOI/NCF LTM LTM DSCR
ADVANCES OUTSTANDING EXPOSURE MONTHLY P&I Interest Rate Date Date NOI/NCF (NOI/NCF)
-------------------- ----------- ----------- ------------- -------- ----------- ---------- ----------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
L74 L75 L99 L77 L79 L76
--------- ---------------- ---------------- ------------------ -------- ------------------------- ---------
VALUATION APPRAISAL BPO OR LOSS USING 90% TOTAL APPRAISAL TRANSFER DATE ASSET EXPECTED TO WORKOUT
DATE INTERNAL VALUE** APPR. OR BPO (F) REDUCTION REALIZED DATE BE RESOLVED OR FORECLOSED STRATEGY*
--------- ---------------- ---------------- ------------------ -------- ------------------------- ---------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
--------
Comments
--------
--------------------------------------
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
*Workout Strategy should match the CMSA Loan Periodic Update File using abbreviated words in place of a code number such as (FCL -
In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale,
BK - Bankruptcy, PP - Payment Plan, TBD - To be determined etc...). It is possible to combine the status codes if the loan is going
in more than one direction (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO).
**BPO - Broker opinion
EXHIBIT P
FORM OF HISTORICAL LOAN MODIFICATION REPORT
CSMA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
as of _______________________
(LOAN LEVEL REPORT)
S4 S57 S58 L49 L48 L7* L7* L50*
-----------------------------------------------------------------------------------------------------------------------------------
BALANCE
EXTENSION WHEN
MOD/ PER EFFECTIVE SENT TO BALANCE AT THE # MTHS
PROSPECTUS EXTENSION DOCS OR DATE OF SPECIAL EFFECTIVE DATE OF OLD FOR RATE
ID CITY STATE FLAG SERVICER MODIFICATION SERVICER MODIFICATION RATE CHANGE
----------- -------- --------- ----------- ----------- ------------- --------- ------------------ ------- -----------
THIS REPORT IS HISTORICAL
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
L50* L25* L25* L11* L11* L47
--------------------------------------------------------------------------------------------------------------------------
(2) EST.
FUTURE
INTEREST
TOTAL # (1) LOSS TO
MTHS FOR REALIZED TRUST $
NEW NEW OLD NEW CHANGE LOSS TO (RATE
RATE XXX X&X X&X MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
----------- -------- --------- ----------- ----------- ------------ --------- ------------------ -------------
THIS REPORT IS HISTORICAL
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
--------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
---------------------------------------------------------------------------------------------------------------------------
--------------------------------
* The information in these columns is from a particular point in time and should not change on this report once assigned.
Future modifications done on the same loan are additions to the report.
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
EXHIBIT Q
FORM OF HISTORICAL LIQUIDATION REPORT
CSMA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF or NOTE SALE)
as of _______________________
(LOAN LEVEL REPORT)
S4 S55 S61 S57 S58 L75 L29 L45
(c) = b/a (a) (b) (d)
-----------------------------------------------------------------------------------------------------------------------------------
LATEST
% RECEIVED APPRAISAL EFFECTIVE NET AMT
PROSPECTUS PROPERTY PROPERTY FROM OF BROKERS DATE OF SALES RECEIVED
LOAN ID NAME TYPE CITY STATE LIQUIDATION OPINION LIQUIDATION PRICE FROM SALE
----------- -------- --------- ----------- ----------- ------------- --------- ------------- --------- -----------
-----------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------------
Total all Loans:
Current Month Only:
-----------------------------------------------------------------------------------------------------------------------------------
X0 X00 X00xX00 X00
(x)xx-
(e) (f) (g) (h) (f+g+h) (k) (m) (n)=k+m (o)=n/e
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL
T&I DATE OF
TOTAL AND OTHER DATE MINOR
ENDING P&I EXPENSE SERVICING LOSS ADJ TOTAL LOSS LOSS % OF
SCHEDULED ADVANCE ADVANCE FEES NET REALIZED PASSED MINOR ADJ PASSED WITH SCHEDULED
BALANCE OUTSTANDING OUTSTANDING EXPENSE PROCEEDS LOSS THRU TO TRUST THRU ADJUSTMENT BALANCE
-------- ----------- ------------- ----------- -------- --------- --------- ---------- --------- ----------- ---------
-----------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
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---------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer .
EXHIBIT R
FORM OF NOI ADJUSTMENT WORKSHEET
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents,
excl. Leasing Commission and TI's
INCOME: YYYY NOTES
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED
-------- ---------- ----------
Gross Potential Rent (2)
Less: Vacancy Loss
OR
Base Rent (2)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
EFFECTIVE GROSS INCOME
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative
$amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses For self-storage include franchise fees
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions (3)
Tenant Improvements (3)
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
(3) Actual current yr, but normalize for annual if possible via contractual,
U/W or other data
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
MULTIFAMILY NOI ADJUSTMENT WORKSHEET (includes Mobile Home Parks)
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
INCOME: YYYY
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED NOTES
-------- ---------- ---------- -----
Statement Classification
Gross Potential Rent (2) Include Pad/RV rent
Less: Vacancy Loss
OR
Base Rent (2)
Laundry/Vending Income
Parking Income
Other Income Include forfeited security/late fees/pet
EFFECTIVE GROSS INCOME
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $
amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
LODGING NOI ADJUSTMENT WORKSHEET
as of MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Daily Rate
Rev per Av. Room
(1) Total $ amount of Capital Reserves required annually by loan documents.
INCOME: YYYY NOTES
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED
-------- ---------- ----------
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
DEPARTMENTAL REVENUE: (2)
(2) Report Departmental Revenue as EGI for CMSA Loan Periodic and Property files
OPERATING EXPENSES:
DEPARTMENTAL
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
GENERAL/UNALLOCATED
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
OPERATING EXPENSE RATIO
(=Departmental Revenue/(Dept. Exp. + General Exp.))
NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
HEALTHCARE NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit, etc. (1) specify annual/per unit...
Year of Operations
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
INCOME: YYYY NOTES
BORROWER
Statement Classification ACTUAL ADJUSTMENT NORMALIZED
-------- ---------- ----------
Gross Potential Rent (2)
Less: Vacancy Loss
OR
Private Pay (2)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
EFFECTIVE GROSS INCOME
(2) Use either Gross Potential (with Vacancy Loss) or Private
Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
NET CASH FLOW
DEBT SERVICE (PER SERVICER)
NET CASH FLOW AFTER DEBT SERVICE
DSCR: (NOI/DEBT SERVICE)
DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(i.e.. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: Comments
EXPENSE: Comments
CAPITAL ITEMS: Comments
EXHIBIT S
FORM OF OPERATING STATEMENT ANALYSIS REPORT
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents,
excl. Leasing Commission and TI's
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / /XX VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent (3)
Expense Reimbursement
Percentage Rent
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Janitorial
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT (includes Mobile Home Parks)
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents.
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / / VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Base Rent (3)
Laundry/Vending Income
Parking Income
Other Income
*EFFECTIVE GROSS INCOME
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/Debt Service)
*DSCR: (NCF/Debt Service)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
LODGING OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
PROPERTY OVERVIEW
PROSPECTUS ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
Occupancy Rate (physical)
Occupancy Date
Average Daily Rate
Rev per Av. Room
(1) Total $ amount of Capital Reserves required annually by loan documents
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / / VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Room Revenue
Food & Beverage Revenues
Telephone Revenue
Other Departmental Revenue
Other Income
*DEPARTMENTAL REVENUE
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
OPERATING EXPENSES:
DEPARTMENTAL
Room
Food & Beverage
Telephone Expenses
Other Dept. Expenses
DEPARTMENTAL EXPENSES:
DEPARTMENTAL INCOME:
GENERAL/UNALLOCATED
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Franchise Fee
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Other Expenses
Ground Rent
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept. Exp + General Exp.)
OPERATING EXPENSE RATIO
(=Departmental Revenue/(Dept. Exp. + General Exp.))
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% DEPT REVENUE, DEPT EXPENSES, GENERAL EXPENSES OR TOTAL CAPITAL
ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
HEALTHCARE OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
PROPERTY OVERVIEW
Prospectus ID
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
Property Name
Property Type
Property Address, City, State
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
Year Built/Year Renovated
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit...
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------ -------- -------- -------- --------
Occupancy Rate (physical)
Occupancy Date
Average Rental Rate
(1) Total $ amount of Capital Reserves required annually by loan documents
INCOME: (prcdng yr (prcdng yr
Number of Mos. Covered to base) to 2nd prcdng)
Period Ended UNDERWRITING 3RD PRECEDING 2ND PRECEDING PRECEDING YR. TTM/YTD(2) YYYY-U/W YYYY-YYYY
Statement Classification(yr) BASE LINE (fm NOI Adj Sheet) AS OF / / VARIANCE VARIANCE
------------ ------------- ------------- ------------------ ----------- --------- -------------
Room Revenue
Gross Potential Rent (3)
Less: Vacancy Loss
OR
Private Pay (3)
Medicare/Medicaid
Nursing/Medical Income
Meals Income
Other Income
*EFFECTIVE GROSS INCOME
(2) Servicer will not be expected to "Normalize" these TTM/YTD numbers.
(3) Use either Gross Potential (with Vacancy Loss) or
Private Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs and Maintenance
Management Fees
Payroll & Benefits
Advertising & Marketing
Professional Fees
General and Administrative
Room expense - housekeeping
Meal expense
Other Expenses
Ground Rent
*TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
*NET OPERATING INCOME
Capital Expenditures
Extraordinary Capital Expenditures
TOTAL CAPITAL ITEMS
*NET CASH FLOW
DEBT SERVICE (PER SERVICER)
*NET CASH FLOW AFTER DEBT SERVICE
*DSCR: (NOI/DEBT SERVICE)
*DSCR: (NCF/DEBT SERVICE)
SOURCE OF FINANCIAL DATA:
(ie. operating statements, financial statements, tax return, other)
---------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
REVENUE LEGEND
GPR Gross Potential Rent x x x x x x x x
VAC Vacancy Loss x x x x x x x x
BR Base Rent x x x x x x x
ER Expense Reimbursements x x x x
PR Percentage Rent x x
LV Laundry/Vending Income x x
PI Parking Income x x x x
OI Other Income x x x x x x x x x
RMRV Room Revenue x
FBV Food & Xxx Revenues x
TLRV Telephone Revenue x x
ODR Other Departmental Revenue x
PRI Private Pay x
MED Medicare/Medicaid Revenues x
NUR Nursing/Medical Income x
MLS Meals Income x
REVENUE LINE ITEMS
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Application Fees OI OI OI OI OI OI OI ********* *********
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Base Rent BR BR BR BR BR BR BR ********* *********
Beverage Revenue ********* ********* ********* ********* ********* ********* ********* FBV *********
Box & Lock Sales ********* ********* ********* ********* ********* ********* OI ********* *********
Cable OI OI ********* ********* ********* ********* ********* ********* *********
CAM ********* ********* ER ER ********* ER ********* ********* *********
Club House Rental OI OI ********* ********* ********* ********* ********* ********* *********
Concessions VAC VAC VAC VAC VAC VAC VAC ********* VAC
Employee Rent BR BR ********* ********* ********* ********* ********* ********* *********
Escalation Income ********* BR BR BR BR BR BR ********* *********
Food & Beverage Revenues ********* ********* ********* ********* ********* ********* ********* FBV MLS
Forfeited Security Deposits OI OI OI OI OI OI OI OI OI
Gain on Sale ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Garage PI PI PI PI ********* PI ********* OI OI
Gross Potential Rent GPR GPR GPR GPR GPR GPR GPR ********* GPR
Gross Rent BR BR BR BR BR BR BR ********* *********
Insurance Proceeds ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Interest Income ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Laundry LV LV ********* OI ********* OI ********* ********* *********
Laundry/Vending LV LV ********* OI ********* OI ********* ********* *********
Meals Income ********* ********* ********* ********* ********* ********* ********* ********* MLS
Medicare/Medicaid Revenues ********* ********* ********* ********* ********* ********* ********* ********* MED
Miscellaneous Income OI OI OI OI OI OI OI OI OI
Mobile Home Sales ********* ELIMINATE ********* ********* ********* ********* ********* ********* *********
NSF Fees OI OI OI OI OI OI OI OI OI
Nursing/Medical ********* ********* ********* ********* ********* ********* ********* ********* NUR
Other Departmental Revenues ********* ********* ********* ********* ********* ********* ********* ODR *********
Other Income OI OI OI OI OI OI OI OI OI
Pad Rental ********* BR ********* ********* ********* ********* ********* ********* *********
Parking Income PI PI PI PI OI PI OI OI OI
Past Tenants Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Percentage Rent ********* ********* ********* PR ********* PR ********* ********* *********
Prepaid Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Private Pay ********* ********* ********* ********* ********* ********* ********* ********* PRI
Reimbursments OI OI ER ER ER ER ********* ********* *********
Rent BR BR BR BR BR BR BR ********* *********
Rent Loss ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Rent on Park Owned Homes ********* BR ********* ********* ********* ********* ********* ********* *********
Room Revenue ********* ********* ********* ********* ********* ********* ********* RMRV *********
Sales OI OI OI OI ********* ********* ********* ********* *********
Security Deposits Collected ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
Security Deposits Returned ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
Storage OI OI OI OI OI OI OI ********* *********
Tax Reimb ********* ********* ER ER ER ER ********* ********* *********
Telephone Commissions ********* ********* ********* ********* ********* ********* ********* TLRV *********
Telephone Revenue ********* ********* ********* ********* ********* ********* ********* TLRV *********
Temporary Tenants OI OI OI OI OI OI OI ********* *********
Utilities ********* ******** ER ER ER ER ********* ********* *********
Vacancy Loss VAC VAC VAC VAC VAC VAC VAC VAC VAC
Vending LV LV OI OI OI OI OI OI OI
CMSA INVESTOR REPORTING PACKAGE
MASTER CODING MATRIX (CONT'D)
COMMERCIAL
----------
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
EXPENSE LEGEND
RET Real Estate Taxes x x x x x x x x x
PINS Property Insurance x x x x x x x x x
UTL Utilities x x x x x x x x x
R&M Repairs and Maintenance x x x x x x x x x
FFEE Franchise Fees x
JAN Janitorial x x x x
MFEE Management Fees x x x x x x x x x
P&B Payroll & Benefits x x x x x x x x x
A&M Advertising & Marketing x x x x x x x x x
PFEE Professional Fees x x x x x x x x x
G&A General and Administrative x x x x x x x x x
OEXP Other Expenses x x x x x x x x x
GDR Ground Rent x x x x x x x x x
RMSE Room Expense (Departmental)
RMSHK Room Expense - Housekeeping x
F&B Food & Beverage (Departmental) x
MLSE Meals Expense x
DTEL Telephone (Departmental) x
ODE Other Departmental Expense x x x x x
LC Leasing Commissions x x x x x
TI Tenant Improvements
CAPEX Capital Expenditures x x x x x x x x x
ECAPEX Extraordinary Capital x x x x x x x x x
Expenditures
EXPENSE LINE ITEMS
COMMERCIAL
----------
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
401K P&B P&B P&B P&B P&B P&B P&B P&B P&B
Accounting Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Administrative Fee G&A G&A G&A G&A G&A G&A G&A G&A G&A
Advalorem Tax G&A G&A G&A G&A G&A G&A G&A G&A G&A
Advertising A&M A&M A&M A&M A&M A&M A&M A&M A&M
Advertising & Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
Alarm System G&A G&A G&A G&A G&A G&A G&A G&A G&A
Amortization ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Ancillary Expense OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Answering Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
Apartment Finder/Guide A&M ********* ********* ********* ********* ********* ********* ********* *********
Asset Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
Auto Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Bank Charges G&A G&A G&A G&A G&A G&A G&A G&A G&A
Banners A&M A&M A&M A&M A&M A&M A&M A&M A&M
Bonuses P&B P&B P&B P&B P&B P&B P&B P&B P&B
Bookkeeping Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Brochures A&M A&M A&M A&M A&M A&M A&M A&M A&M
Business License G&A G&A G&A G&A G&A G&A G&A G&A G&A
Cable G&A G&A G&A G&A G&A G&A G&A G&A G&A
CAM R&M R&M R&M R&M R&M R&M R&M R&M R&M
Capital Expenditures CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
Cleaning R&M R&M JAN JAN JAN JAN R&M R&M RMSHK
Commissions G&A G&A G&A G&A G&A G&A G&A G&A G&A
Computer Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
Contract Work P&B P&B P&B P&B P&B P&B P&B P&B P&B
Courtesy Patrol G&A G&A G&A G&A G&A G&A G&A G&A G&A
Credit Card Fees ********* ********* ********* ********* ********* ********* ********* G&A *********
Credit Check G&A G&A G&A G&A G&A G&A G&A G&A G&A
Depreciation ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Education G&A G&A G&A G&A G&A G&A G&A G&A G&A
Electrical R&M R&M R&M R&M R&M R&M R&M R&M R&M
Electricity UTL UTL UTL UTL UTL UTL UTL UTL UTL
Elevator R&M R&M R&M R&M R&M R&M R&M R&M R&M
Employee Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
Employee Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
Entertainment G&A G&A G&A G&A G&A G&A G&A G&A G&A
Eviction Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
Extraordinary Capital ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX
Expenditures
Exterminating Service R&M R&M R&M R&M R&M R&M R&M R&M R&M
FF & E Reserve CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
FICA P&B P&B P&B P&B P&B P&B P&B P&B P&B
Financing Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Flood Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
CMSA INVESTOR REPORTING PACKAGE
MASTER CODING MATRIX (CON'T)
EXPENSE LINE ITEMS
(CONTINUED)
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Floor Covering Replacement R&M R&M R&M R&M R&M R&M R&M R&M R&M
Food & Beverage Expense ********* ********* ********* ********* ********* ********* ********* F&B *********
(Departmental)
Franchise Fees ********* ********* ********* ********* ********* ********* ********* FFEE *********
Freight & Shipping G&A G&A G&A G&A G&A G&A G&A G&A G&A
Gas UTL UTL UTL UTL UTL UTL UTL UTL UTL
General & Administrative G&A G&A G&A G&A G&A G&A G&A G&A G&A
Ground Rent GDR GDR GDR GDR GDR GDR GDR GDR GDR
Hazard Liability PINS PINS PINS PINS PINS PINS PINS PINS PINS
Health Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
HVAC R&M R&M R&M R&M R&M R&M R&M R&M R&M
Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
Interest ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Janitorial R&M R&M JAN JAN JAN JAN ********* ********* RMSHK
Land Lease GDR GDR GDR GDR GDR GDR GDR GDR GDR
Landscaping (Exterior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
Landscaping/Plants (Interior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
Leased Equipment G&A G&A G&A G&A G&A G&A G&A G&A G&A
Leasing Comissions ********* ********* LC LC LC LC LC ********* *********
Leasing Office Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
Legal Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Licenses G&A G&A G&A G&A G&A G&A G&A G&A G&A
Life Insurance ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Life Safety G&A G&A G&A G&A G&A G&A G&A G&A G&A
Loan Principal ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Locks/Keys R&M R&M R&M R&M R&M R&M R&M R&M R&M
Maid Service R&M R&M JAN JAN JAN JAN ********* ********* RMSHK
Make Ready R&M R&M R&M R&M R&M R&M R&M R&M R&M
Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
Manager Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
Meals Expense ********* ********* ********* ********* ********* ********* ********* FMB MLSE
Mechanical R&M R&M R&M R&M R&M R&M R&M R&M R&M
Media Commissions A&M A&M A&M A&M A&M A&M A&M A&M A&M
Mileage G&A G&A G&A G&A G&A G&A G&A G&A G&A
Miscellaneous OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Miscellaneous G & A G&A G&A G&A G&A G&A G&A G&A G&A G&A
Model Apartment G&A ********* ********* ********* ********* *********
Newspaper A&M A&M A&M A&M A&M A&M A&M A&M A&M
Office Supplies G&A G&A G&A G&A G&A G&A G&A G&A G&A
Other Departmental Expense ********* ********* ********* ********* ********* ********* ********* ODE *********
Other Expenses OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
Owners Draw ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Painting R&M R&M R&M R&M R&M R&M R&M R&M R&M
Parking Lot R&M R&M R&M R&M R&M R&M R&M R&M R&M
Partnership Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
Payroll & Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
Payroll Taxes P&B P&B P&B P&B P&B P&B P&B P&B P&B
Permits G&A G&A G&A G&A G&A G&A G&A G&A G&A
Personal Property Taxes G&A G&A G&A G&A G&A G&A G&A G&A G&A
Pest Control R&M R&M R&M R&M R&M R&M R&M R&M R&M
Plumbing R&M R&M R&M R&M R&M R&M R&M R&M R&M
Pool R&M R&M ********* ********* ********* R&M ********* R&M R&M
Postage G&A G&A G&A G&A G&A G&A G&A G&A G&A
Printing G&A G&A G&A G&A G&A G&A G&A G&A G&A
Professional Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
Promotions A&M A&M A&M A&M A&M A&M A&M A&M A&M
Property Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
Real Estate Taxes RET RET RET RET RET RET RET RET RET
Repair Escrow CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
Repairs & Maintenance R&M R&M R&M R&M R&M R&M R&M R&M R&M
Room Expense (Departmental) ********* ********* ********* ********* ********* ********* ********* RMSE *********
Room Expense-Housekeeping ********* ********* ********* ********* ********* ********* ********* RMSE ***RMSHK*
Rubbish Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
Scavenger R&M R&M R&M R&M R&M R&M R&M R&M R&M
Security G&A G&A G&A G&A G&A G&A G&A G&A G&A
Sewer UTL UTL UTL UTL UTL UTL UTL UTL UTL
Signage A&M A&M A&M A&M A&M A&M A&M A&M A&M
Snow Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
Subscriptions/Dues G&A G&A G&A G&A G&A G&A G&A G&A G&A
Telephone G&A G&A G&A G&A G&A G&A G&A ********* G&A
Telephone (Departmental) ********* ********* ********* ********* ********* ********* ********* DTEL *********
Temporary Help P&B P&B P&B P&B P&B P&B P&B P&B P&B
CMSA INVESTOR REPORTING PACKAGE
MASTER CODING MATRIX (CON'T)
EXPENSE LINE ITEMS
(CONTINUED)
COMMERCIAL
----------
MULTI FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
MULTI FAMILY MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
------------ ------------ ---------- ---------- ----------- ---------- ------------ ------- -----------
Tenant Improvements ********* ******** TI TI TI TI TI ********* *********
Trash Removal UTL UTL UTL UTL UTL UTL UTL UTL UTL
Travel G&A G&A G&A G&A G&A G&A G&A G&A G&A
Turnover R&M R&M TI TI TI TI TI ********* R&M
Unemployment Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
Uniform Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
Utilities UTL UTL UTL UTL UTL UTL UTL UTL UTL
Utility Vehicle G&A G&A G&A G&A G&A G&A G&A G&A G&A
Vehicle Lease G&A G&A G&A G&A G&A G&A G&A G&A G&A
Water UTL UTL UTL UTL UTL UTL UTL UTL UTL
Worker's Comp P&B P&B P&B P&B P&B P&B P&B P&B P&B
Yellow Pages A&M A&M A&M A&M A&M A&M A&M A&M A&M
EXHIBIT T
FORM OF INTERIM DELINQUENT LOAN STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
as of ______________
(Loan Level Report)
--------------------------------------------------------
S4 L8
---------- ------------ -------------------------
LOAN PAID
PROSPECTUS THRU COMMENTS
ID DATE
---------- ------------ -------------------------
Loan(s) Delinquent as of Month End
EXHIBIT U
FORM OF CMSA LOAN PERIODIC UPDATE FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
---------------------------------------------- ---------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
---------------------------------------------- ---------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
---------------------------------------------- ---------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each
Loan Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of
current period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current
period that is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency < the
date the loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The
Current Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate
The Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate
The Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc
Of The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To
Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The
Current Period that goes to the trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current
Period that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For
Current Period for the trust
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount
Due For The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During
The Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by
Servicer per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction -
The difference between a full advance and the
reduced advance is the ASER or as defined in
the Trust documents
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most
Recent ASER Date. Field not considered
applicable to ASER.)
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement
Reduction
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End
Of The Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The
Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End
Of The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The
Current Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y",
Else "N")
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date
then print that date otherwise leave empty
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same date
then print that date otherwise leave empty
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted
to the Trust per the Trust Documents
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted
from the Trust per the Trust Documents
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received (as defined in Trust documents)
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year Operating Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Preceding
Fiscal Yr Debt Svc Cvrge Ratio using NOI
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ] for
each Property, if missing any then leave empty
Preceding Fiscal Year Financial As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year Operating Expenses 60 Numeric 1000.00 P62 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year Debt Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Second
Preceding Fiscal Year Debt Service Coverage
Ratio using NOI
Second Preceding Fiscal Year Physical Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ] for
each Property, if missing any then leave empty
Second Preceding Fiscal Year Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Most Recent
Debt Service Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ] for
each Property, if missing any then leave empty
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same
then print the date, if missing any then leave
empty
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the value,
if missing any then leave empty
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Special Servicer Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary
Servicer
Date Asset Expected to Be Resolved or Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then print the
latest date from the affiliated properties.
If in Foreclosure - Expected Date of
Foreclosure and if REO - Expected Sale Date.
Blank 80 AN Blank Left blank on purpose. (Note : was previously
Year Renovated. Use the Property File field
15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date
will be the same as setup file unless the loan
is modified and a new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date,
Check Start & End Date Applies to field L66 to
L73. If Multiple properties and all the same
then print the value, if missing any or if the
values are not the same, then leave empty
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information changed
last in the setup file by loan
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties were
contributed. For Multiple properties print the
latest date from the affiliated properties
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying the
Mortgage Loan
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties. See DSCR
Indicator Legend.
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties. See DSCR
Indicator Legend.
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties. See DSCR
Indicator Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial period.
See NOI/NCF Indicator Legend. P84 - If Multiple
Properties and all the same then print value,
if missing any or if the values are not the
same, then leave empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower-
empty if never assumed
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow related
to Financial As of Date L58. If Multiple
properties then sum the value, if missing any
then populate using the "DSCR Indicator Legend"
rule
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage
Ratio using NCF related to Financial As of Date
L58. If Multiple properties populate using
the "DSCR Indicator Legend" rule.
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash Flow
related to Financial As of Date L65. If
Multiple properties then sum the value, if
missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding Fiscal Year DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service
Coverage Ratio using Net Cash Flow related to
Financial As of Date L65. If Multiple
properties populate using the "DSCR Indicator
Legend" rule.
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to
Financial As of Ending Date L73. If Multiple
properties then sum the value, if missing any
then populate using the "DSCR Indicator Legend"
rule
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio
using Net Cash Flow related to Financial As of
Ending Date L73. If Multiple properties
populate using the "DSCR Indicator Legend"
rule.
Defeasance Status 98 AN Text See Defeasance Status Legend
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the
principal balance over the defined appraisal
% or as defined in the trust documents
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
-----------------------------------------
WORKOUT STRATEGY CODE
LEGEND
-----------------------------------------
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
11 Full Payoff
12 Reps and Warranties
13 Other or TBD
------------------------------------------
------------------------------------------
LIQUIDATION/PREPAYMENT CODE
LEGEND
-----------------------------------------
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase/ Substitution
5 Full Payoff At Maturity
6 DPO
7 Liquidation
8 Payoff w/ penalty
9 Payoff w/ yield Maintenance
10 Curtailment w/ Penalty
11 Curtailment w/ Yield Maintenance
------------------------------------------
------------------------------------------
DEFEASANCE STATUS
LEGEND
------------------------------------------
P Partial Defeasance
F Full Defeasance
N No Defeasance Occurred
X Defeasance not Allowable
------------------------------------------
--------------------------------------------------------------------------------
STATUS OF MORTGAGE LOAN
LEGEND
--------------------------------------------------------------------------------
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 30 days Delinquent
0 Current
1 30-59 Days Delinquent
2 60-89 Days Delinquent
3 90+ Days Delinquent
4 Assumed Scheduled Payment (Performing Matured Balloon)
7 Foreclosure
9 REO
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
MODIFICATION CODE
LEGEND
--------------------------------------------------------------------------------
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCR INDICATOR
LEGEND
--------------------------------------------------------------------------------
P Partial - Not all properties received financials, servicer
to leave empty
A Average - Not all properties received financials, servicer
allocates Debt Service only to properties where financials
are received.
F Full - All Statements Collected for all properties
W Worst Case - Not all properties received financials, servicer
allocates 100% of Debt Service to all properties where
financials are received.
N None Collected - no financials were received
C Consolidated - All properties reported on one "rolled up"
financial from the borrower
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NOI/NCF INDICATOR
LEGEND
--------------------------------------------------------------------------------
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
--------------------------------------------------------------------------------
EXHIBIT V-1
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group-First Union
Commercial Mortgage Securities, Inc., Series 2002-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-C1
In accordance with Section 3.15 of the Pooling and Servicing Agreement
dated as of February 10, 2002 (the "Pooling and Servicing Agreement"), among
First Union Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), First Union National Bank, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, LaSalle Bank National Association, as
paying agent (in such capacity, the "Paying Agent"), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee, with respect to the First Union National Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2002-C1 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting access to the information posted to
the Paying Agent's Internet Website pursuant to Section 4.02 of the
Pooling and Servicing Agreement, or the information identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement (the "Information").
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from its agents and auditors), and
such Information will not, without the prior written consent of the
Paying Agent, be disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may provide all or any
part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but
only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify
the Depositor, the Trustee, the Paying Agent, the Master Servicer, the
Special Servicer and the Trust for any loss, liability or expense
incurred thereby with respect to any such breach by the undersigned or
any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_________________________________________
BENEFICIAL HOLDER OF A
CERTIFICATE
By:____________________________________
Name:_______________________________
Title:______________________________
Phone:______________________________
EXHIBIT V-2
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group-First Union
Commercial Mortgage Securities, Inc., Series 2002-C1
Re: First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2002-C1 (the "Certificates")
In accordance with Section 3.15 of the Pooling and Servicing
Agreement, dated as of February 10, 2002 (the "Pooling and Servicing
Agreement"), among First Union Commercial Mortgage Securities, Inc., as
depositor (the "Depositor"), First Union National Bank, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as paying agent (in such capacity, the "Paying Agent"), and Xxxxx
Fargo Bank Minnesota, N.A. as trustee, with respect to the First Union National
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2002-C1 (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is contemplating an investment in the Class __
Certificates.
2. The undersigned is requesting access to the information posted to
the Paying Agent's Internet Website pursuant to Section 4.02 of the Pooling
and Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the "Information") for use in evaluating such possible
investment.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from its agents and auditors), and such Information
will not, without the prior written consent of the Paying Agent, be
disclosed by the undersigned or by its officers, directors, partners
employees, agents or representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part.
The undersigned will not use or disclose the Information in any manner which
could result in a violation of any provision of the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended, or would require registration of any Certificate pursuant to Section 5
of the Securities Act.
4. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Paying Agent, the Master Servicer, the Special
Servicer and the Trust for any loss, liability or expense incurred thereby
with respect to any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:_______________________________
Title:______________________________
Phone:______________________________
EXHIBIT W
FORM OF CMSA BOND FILE REPORT
CSSA
BOND LEVEL FILE LAYOUT
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
VERSION 1.0 (12/31/98)
--------------------------------------- ------------------ ------------ ----------------------------------------------------------
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------- ------------- ------------ ----------------------------------------------------------
------------------------------------------- ------------- ------------ ----------------------------------------------------------
Character Set ASCII
Field Delineation Comma
------------------------------------------- ------------- ------------ ----------------------------------------------------------
------------------------------------------- ------------- ------------ ----------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic (Consistent With CSSA
Periodic Loan File)
Distribution Date 2 AN YYYYMMDD Date Payments Made To Certificateholders
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be Considered Holder Of
Record
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
Original Balance 6 Numeric 1000000.00 The Class Balance At Inception Of The Issue
Notional Flag 7 AN Y "Y" For Notional
Beginning Balance 8 Numeric 100000.00 The Outstanding Principal Balance Of The Class At The
Beginning Of The Current Period
Scheduled Principal 9 Numeric 1000.00 The Scheduled Principal Paid
Unscheduled Principal 10 Numeric 1000.00 The Unscheduled Principal Paid
Total Principal Distribution 11 Numeric 1000.00 Total Principal Payment Made
Deferred Interest 12 Numeric 1000.00 Any Interest Added To The Class Balance Including Negative
Amortization
Realized Loss (Gain) 13 Numeric 1000.00 The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses 14 Numeric 100000.00 Realized Losses Allocated Cumulative-To-Date.
Ending Balance 15 Numeric 1000.00 Outstanding Principal Balance Of The Class At The End Of
The Current Period
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The Calculation Of
Current Period Remittance Interest Rate
Current Remittance Rate / Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To The Calculation Of
Current Period Remittance Interest
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,4=Actual/Actual,
5=Actual/366
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To The Calculation
Of Current Period Remittance Interest
Interest Accrued 20 Numeric 1000.00 The Amount Of Accrued Interest
Prepayment Penalty/Premium Allocation 21 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated
Other Interest Distribution 23 Numeric 1000.00 Other Specific Additions To Interest
Prepayment Interest Shortfall 24 Numeric 1000.00 Total Interest Adjustments For PPIS
Appraisal Reduction Allocation 25 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Other Interest Shortfall 26 Numeric 1000.00 Total Interest Adjustments Other Than PPIS
Total Interest Distribution 27 Numeric 1000.00 The Total Interest Payment Made
Cumulative Appraisal Reduction 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Cummualtive Prepayment Penalty/Premium
Allocation 29 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated To Date
CummualtiveYield Maintenance Allocation 30 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated To
Date
Beginning Unpaid Interest Balance 31 Numeric 1000.00 Outstanding Interest Shortfall At The Beginning Of The
Current Period
Ending Unpaid Interest Balance 32 Numeric 1000.00 Outstanding Interest Shortfall At The End Of The Current
Period
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff & Xxxxxx
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By Duff & Xxxxxx
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Duff & Xxxxxx
Fitch - Orignal Rating 36 AN AAA The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of The Class By Fitch
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Fitch
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of The Class By Moody's
Moody's - Date Transmitted from Rating
Agency 41 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Moody's
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By Standard & Poors
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By Standard & Poors
Standard & Poors - Date Transmitted from
Rating Agency 44 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Standard & Poors
------------------------------------------- ------------- ------------ ----------------------------------------------------------
EXHIBIT X
FORM OF CMSA COLLATERAL SUMMARY FILE
CSSA
COLLATERAL SUMMARY FILE LAYOUT
COLLATERAL LEVEL SUMMARY - SUMMARIZES CSSA 100.1 PERIODIC FILE
VERSION 1.0 (12/31/98)
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
PERIODIC
FIELD FORMAT
FIELD NAME REFERENCE # # TYPE EXAMPLE DESCRIPTION/COMMENTS
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
Character Set ASCII
Field Delineation Comma
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97001 Unique Identification Number Assigned To Each Loan
Group Within An Issue
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certificateholders
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
Ending current period collateral balance 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at end of
current period
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
1 month Delinquent - scheduled balance 8 Numeric 1000.00 Scheduled principal balance of loans one month
delinquent
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
2 months Delinquent - scheduled balance 10 Numeric 1000.00 Scheduled principal balance of loans two months
delinquent
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
3 months Delinquent - scheduled balance 12 Numeric 1000.00 Scheduled principal balance of loans three months
delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure - overrides loans in
delinquency
Foreclosure - scheduled balance 14 Numeric 1000.00 Scheduled principal balance of loans in foreclosure -
overrides loans in delinquency
REO - number 15 Numeric 1 Number of REOs - overrides loans in delinquency or
foreclosure
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrrides loans in delinquency
or foreclosure
Specially serviced - number 17 Numeric 1 Number of specially serviced loans - includes loans
in delinquency, foreclosure, REO
Specially serviced - scheduled balance 18 Numeric 1000.00 Scheduled principal of Specially Serviced loans
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included in
delinquency aging category
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in bankruptcy -
included in delinquency aging category
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the current period
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in full for the
current period.
Total unscheduled principal 27+28 23 Numeric 1000.00 Includes prepayments in full, partial pre-payments,
curtailments in the current period
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield maintenance
penalties on the loans for the period.
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current period
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of
The Current Period
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve accounts
pledged as credit enhancement
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve accounts pledged
as credit enhancement
Amortization WAM 34 Numeric 333 Weighted average maturity based on amortization term
Maturity WAM 35 Numeric 333 Weighted average maturity based on term to maturity
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to calculate gross
interest
---------------------------------------- ----------- ----------- ------------ ------------------------------------------------------
EXHIBIT Y
ATTACHMENT A:
FORM OF CMSA FINANCIAL FILE
CMSA FINANCIAL FILE CATEGORY CODE MATRIX
------------------------------------------------------------------------------------------------------
Property Type
-------------
Code/ Multi- Health
Sort Order Description Commercial family Care Lodging
------------------------------------------------------------------------------------------------------
INCOME
010GROSRNT Gross Potential Rent o o o
020VACANCY Less: Vacancy/Collection Loss o o o
030BASERNT Base Rent o o
040EXPREMB Expense Reimbursement o
050PCTRENT Percentage Rent o
060ROOMREV Room Revenue o
070FOODBEV Food & Beverage Revenues o
080PHONE Telephone Revenue o
090OTHDREV Other Departmental Revenue o
100PVTPAY Private Pay o
110MEDCARE Medicare/Medicaid o
120NURSING Nursing/Medical Income o
130MEALS Meals Income o
140LAUNDRY Laundry/Vending Income o
150PARKING Parking Income o o
160OTHERIN Other Income o o o o
EXPENSES
270ROOMS Room (Department) o
280FOODBEV Food & Beverage (Departmental) o
290PHONE Telephone Expenses (Departmental) o
300OTHDEPT Other Dept. Expenses o
310RETAXES Real Estate Taxes o o o o
320PROPINS Property Insurance o o o o
330UTILITI Utilities o o o o
340REPAIRS Repairs and Maintenance o o o o
350JANITOR Janitorial o
000XXXXXXX Xxxxxxxxx Fee o
370MANAGEM Management Fees o o o o
380PAYROLL Payroll & Benefits o o o o
390MARKETI Advertising & Marketing o o o o
400PROFESS Professional Fees o o o o
410GENERAL General and Administrative o o o o
420ROOMS Room Expense - Housekeeping o
430MEALS Meal expense o
440OTHEREX Other Expenses o o o o
450GROUNDR Ground Rent o o o o
RESRV &
CAPEX
490LEASING Leasing Commissions o
500TENANTI Tenant Improvements o
510CAPEX Capital Expenditures o o o o
520EXCAPEX Extraordinary Capital Expenditures o o o o
--------------------------------------------------------------
DATA TYPES
--------------------------------------------------------------
YTD Current Year - Year to Date
AN Annual (prior 12 months' data fiscal year - audited)
TR Trailing 12 months' data
UB Underwriting Base Line
--------------------------------------------------------------
STATEMENT TYPES
--------------------------------------------------------------
BOR Borrower's Statement (as submitted)
ADJ Adjustments to Borrower's Statement
NOR Normalized Statement (to CMSA format)
ATTACHMENT B:
CMSA FINANCIAL FILE SPECIFICATIONS
--------------------------------------------------------------------------------
RECORD LAYOUT
--------------------------------------------------------------------------------
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property Seq # 001 - 999
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99 (Enter as an Absolute Value)
--------------------------------------------------------------------------------
Key: Trans ID
Loan #
Property Seq #
YYYYMM Financial Statement Ending Date
Data Type
Statement Type
Category Code
--------------------------------------------------------------------------------
SAMPLE ASCII PRESENTATION (PREFERRED)
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,010GROSRNT,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,020VACANCY,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,030BASERNT,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,160OTHERIN,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,310RETAXES,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,320PROPINS,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,330UTILITI,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,340REPAIRS,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,350JANITOR,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,370MANAGEM,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,380PAYROLL,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,390MARKETI,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,410GENERAL,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,440OTHEREX,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,500TENANTI,999999.99
XX97D4, 12768-34,001,199901,199903,YTD,NOR,510CAPEX,999999.99
--------------------------------------------------------------------------------
SAMPLE SPREADSHEET PRESENTATION
--------------------------------------------------------------------------------
BEGIN ENDING DATA STMT
TRANS ID LOAN # PROP # YYYYMM YYYYMM TYPE TYPE CATEGORY AMOUNT
--------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 001 199901 199903 YTD NOR 510CAPEX 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 010GROSRNT 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 020VACANCY 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 030BASERNT 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 160OTHERIN 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 310RETAXES 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 320PROPINS 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 330UTILITI 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 340REPAIRS 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 350JANITOR 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 370MANAGEM 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 380PAYROLL 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 390MARKETI 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 410GENERAL 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 440OTHEREX 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 500TENANTI 999999.99
XX97D4 12768-34 002 199901 199903 YTD NOR 510CAPEX 999999.99
EXHIBIT Z
FORM OF CMSA LOAN SETUP FILE
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
----------------------------------- -------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
----------------------------------- -------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan Group Within
An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Number Assigned To Each Collateral Item
In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each Collateral Item In
The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual, 5=Actual/366,
6=Simple, 7=78's
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the format of LO(36),
YM(28), 7(12), O(3). If manually derived, the Cutoff Date should be
the start date for period counting.
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The Gross Interest
Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan Per The
Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan Per The
Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per The Loan
Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed Per The Loan
Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed Per The Loan
Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment Allowed Per The Loan
Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually, 365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually, 365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See Rounding Code
Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization
Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance Allowed Per The Loan
Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original Balance Allowed Per
The Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amort Term At
Contribution 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At Contribution
Scheduled Principal Balance
At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan At Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To The Calculation
Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate =
Net Rate
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At
Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment at Contribution
# Of Properties at
Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The Mortgage Loan
Property Name 55 AN Text P7 - If Multiple properties print "Various"
Property Address 56 AN Text P8 - If Multiple properties print "Various"
Property City 57 AN Text P9 - If Multiple properties have the same city then print the city,
otherwise print "Various". Missing information print "Incomplete"
Property State 58 AN Text P10 - If Multiple properties have the same state then print the state,
otherwise print "XX" to represent various. Missing information print
"ZZ"
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code then print the zip
code, otherwise print "Various". Missing information print
"Incomplete"
Property County 60 AN Text P12 - If Multiple properties have the same county then print the
county, otherwise print "Various". Missing information print
"Incomplete"
Property Type Code 61 AN MF P13 - If Multiple properties have the same property type code then
print the property code, otherwise print "XX" to represent various.
Missing information print "ZZ"
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same Property Type, sum the
values, if missing any leave empty
# Of Units/Beds/Rooms At
Contribution 63 Numeric 75 P17 - For Multiple properties, if all the same Property Type, sum the
values, if missing any leave empty
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year Built then print Year
Built else leave empty
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if missing any then
populate using the "DSCR Indicator Legend" rule. Should match
the prospectus if available.
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the "DSCR Indicator
Legend" rule. DSCR At Contribution using NOI. Should match the
prospectus if available.
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values , if missing any then
leave empty
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then print the date, if
missing any then leave empty
Physical Occupancy At
Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average by using the
calculation [ Current Allocated % (Prop) * Occupancy (Oper) ] for
each Property, if missing one then leave empty
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value, if missing any then
populate using the "DSCR Indicator Legend" rule. Should match the
prospectus if available.
Operating Expenses At
Contribution 71 Numeric 100000.00 P46 - If Multiple properties then sum the value, if missing any then
populate using the "DSCR Indicator Legend" rule. Should match
the prospectus if available.
Contribution Financials
As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all the same then print the date, if
missing any then leave empty
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 - If Multiple properties
and any one property is "Y" or "S" print "Y"
Cross-Collateralized Loan
Grouping 75 AN Text P6 - All Loans With The Same Value Are Crossed, For example : "X02-1"
would be populated in this field for all related loans, "X02-2"
would be populated for the next group of related loans.
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
Collection Of Other
Reserves (Y/N) 77 AN Y Y=Yes, N=No - Referring to Reserves other than Taxes and Insurance.
If any property has a value > 0 in P23, this field should be "Y"
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was last changed by loan
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if missing any then
populate using the "DSCR Indicator Legend" rule. Net Cash Flow At
Contribution. Should match the prospectus if available.
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the "DSCR Indicator
Legend" rule. DSCR At Contribution using NCF to calculate. Should
match the prospectus if available.
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated when there are
multiple properties. See DSCR Indicator Legend.
Loan Contributor to
Securitization 86 AN Text Name of entity ultimately responsible for the reps and warranties of
the loan contributed
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
EXHIBIT AA
INITIAL COMPANION HOLDER
Capital Lease Funding, L.P. shall be the Initial Companion Holder for
all Companion Loans.
EXHIBIT BB
CLASS IO-II REFERENCE RATE SCHEDULE
INTEREST CLASS IO-II INTEREST DISTRIBUTION CLASS IO-II
ACCRUAL DISTRIBUTION REFERENCE ACCRUAL DATE REFERENCE
PERIOD DATE RATE PERIOD RATE
--------------------------------------------------------------------------------
1 3/12/02 7.21443 43 9/12/05 7.45991
2 4/12/02 7.46086 44 10/12/05 7.21744
3 5/12/02 7.21836 45 11/12/05 7.45987
4 6/12/02 7.46081 46 12/12/05 7.21740
5 7/12/02 7.21831 47 1/12/06 7.21738
6 8/12/02 7.46076 48 2/12/06 7.21736
7 9/12/02 7.46074 49 3/12/06 7.21803
8 10/12/02 7.21824 50 4/12/06 7.45976
9 11/12/02 7.46069 51 5/12/06 7.21734
10 12/12/02 7.21819 52 6/12/06 7.45972
11 1/12/03 7.21816 53 7/12/06 7.21726
12 2/12/03 7.21814 54 8/12/06 7.45967
13 3/12/03 7.21860 55 9/12/06 7.45965
14 4/12/03 7.46054 56 10/12/06 7.21451
15 5/12/03 7.21805 57 11/12/06 7.45684
16 6/12/03 7.46048 58 12/12/06 7.21446
17 7/12/03 7.21799 59 1/12/07 7.21576
18 8/12/03 7.46043 60 2/12/07 7.21573
19 9/12/03 7.46040 61 3/12/07 7.21649
20 10/12/03 7.21791 62 4/12/07 7.45809
21 11/12/03 7.46034 63 5/12/07 7.21568
22 12/12/03 7.21785 64 6/12/07 7.45805
23 1/12/04 7.46029 65 7/12/07 7.21564
24 2/12/04 7.21781 66 8/12/07 7.45801
25 3/12/04 7.21798 67 9/12/07 7.45799
26 4/12/04 7.46023 68 10/12/07 7.21559
27 5/12/04 7.21775 69 11/12/07 7.45795
28 6/12/04 7.46019 70 12/12/07 7.21555
29 7/12/04 7.21771 71 1/12/08 7.45791
30 8/12/04 7.46015 72 2/12/08 7.21551
31 9/12/04 7.46013 73 3/12/08 7.21578
32 10/12/04 7.21766 74 4/12/08 7.45785
33 11/12/04 7.46010 75 5/12/08 7.21545
34 12/12/04 7.21763 76 6/12/08 7.45781
35 1/12/05 7.21761 77 7/12/08 7.21540
36 2/12/05 7.21759 78 8/12/08 7.45776
37 3/12/05 7.21820 79 9/12/08 7.45774
38 4/12/05 7.46000 80 10/12/08 7.21534
39 5/12/05 7.21754 81 11/12/08 7.45769
40 6/12/05 7.45997 82 12/12/08 7.21529
41 7/12/05 7.21750 83 1/12/09 7.21864
42 8/12/05 7.45993 84 2/12/09 7.21862
EXHIBIT CC
FORM OF PURCHASE OPTION NOTICE
PURSUANT TO SECTION 3.18
[Date]
Xxxxx Fargo Bank Minnesota, N.A
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS) First Union National Bank
Commercial Mortgage Pass-Through Certificates, Series 2002-C1
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed SecuritiesTrust Services Group - First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
0000-X0
Xxxxx Xxxxx Xxxxxxxx Xxxx
XX 1075
0000 Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
2002-C1
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement") dated as of February 10, 2002,
by and among First Union Commercial Mortgage Securities, Inc., as depositor,
Xxxxx Fargo Bank Minnesota, N.A., as trustee, GMAC Commercial Mortgage
Corporation., as special servicer, First Union National Bank, as master
servicer, and LaSalle Bank National Association, as paying agent. Capitalized
terms used herein and not otherwise defined shall have the meaning set forth in
the Pooling and Servicing Agreement.
The undersigned Option Holder [is the Special Servicer] [is the Majority
Subordinate Certificateholder] [acquired its Purchase Option from the [Special
Servicer] [Majority Subordinate Certificateholder] on _________].
The undersigned Option Holder is exercising its Purchase Option at the
cash price of $______________, which amount equals or exceeds the Option Price,
as defined in Section 3.18(d) of the Pooling and Servicing Agreement. Within ten
(10) Business Days of the date hereof, [the undersigned Option Holder]
[______________, an Affiliate of the undersigned Option Holder] will deliver the
Option Price to or at the direction of the Special Servicer in exchange for the
release of the Mortgage Loan, the related Mortgaged Property and delivery of the
related Mortgage Loan File.
The undersigned Option Holder agrees that it shall prepare and provide
the Special Servicer with such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably necessary to vest in it or its
designee the ownership of Mortgage Loan ____, together with such other documents
or instruments as the Special Servicer shall reasonably require to consummate
the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its exercise
of its Purchase Option Notice may not be revoked and that the undersigned Option
Holder, or its designee, shall be obligated to close its purchase of Mortgage
Loan in accordance with the terms and conditions of this letter and Section
3.18 of the Pooling and Servicing Agreement.
Very truly yours,
[Option Holder]
By: _____________________________
Name:
Title:
[By signing this letter in the space provided below, the [Special
Servicer] [Majority Subordinate Certificateholder] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[-----------------------]
By:
Name:
Title: ]