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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) March 19, 1999
DLJ Commercial Mortgage Corp.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-59167-02 13-3956945
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
277 Park Avenue, New York, New York 10172
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 892-3000
---------------
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On March 19, 1999, a single series of certificates entitled
Series 1999-CG1 Commercial Mortgage Pass-Through Certificates (the
"Certificates"), was issued pursuant to a pooling and servicing (the "Pooling
and Servicing Agreement"), dated as of March 1, 1999, among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan Services, Inc. as
master servicer (the "Master Servicer"), Banc One Mortgage Capital Markets, LLC
as special servicer (the "Special Servicer") and Norwest Bank Minnesota,
National Association as trustee (in such capacity, the "Trustee") and REMIC
administrator (in such capacity, the "REMIC Administrator"). The Certificates
consist of 20 classes identified as the "Class S Certificates", the "Class A-1A
Certificates", the "Class A-1B Certificates", the "Class A-2 Certificates", the
"Class A-3 Certificates", the "Class A-4 Certificates", the "Class B-1
Certificates", the "Class B-2 Certificates", the "Class B-3 Certificates", the
"Class B-4 Certificates", the "Class B-5 Certificates", the "Class B-6
Certificates", the "Class B-7 Certificates", the "Class B-8 Certificates", the
"Class C Certificates", the "Class D-1 Certificates", the "Class D-2
Certificates", the "Class R-I Certificates", the "Class R-II Certificates" and
the "Class R-III Certificates", respectively. The Certificates were issued in
exchange for, and to evidence the entire beneficial ownership interest in, the
assets of a trust fund (the "Trust Fund") consisting primarily of a segregated
pool (the "Mortgage Pool") of commercial and multifamily mortgage loans (the
"Mortgage Loans"), having, as of the close of business on March 1, 1999 (the
"Cut-off Date"), an aggregate principal balance of $1,239,717,562 (the "Initial
Pool Balance"), after taking into account all payments of principal due on the
Mortgage Loans on or before such date, whether or not received. The Depositor
acquired certain of the Mortgage Loans from GE Capital Access, Inc. ("GECA"),
which is an affiliate of the Master Servicer and the remaining Mortgage Loans
from Column Financial, Inc. ("Column"; and together with GECA the "Mortgage Loan
Sellers"), which is an affiliate of the Depositor pursuant to certain mortgage
loan purchase agreements between the Depositor and each of the Mortgage Loan
Sellers. The Depositor caused the Mortgage Loans to be transferred to the
Trustee for the benefit of the holders of the Certificates. The Depositor sold
the Class S, Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1
and Class B-2 Certificates to Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJSC") and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"; and, together with DLJSC, the "Underwriters"), pursuant to an
underwriting agreement dated March 15,1999 (the "Underwriting Agreement"), among
the Depositor and the Underwriters. A form of the Pooling and Servicing
Agreement is attached hereto as Exhibit 99.1 and a form of the Underwriting
Agreement is attached hereto as Exhibit 99.2.
In connection with the issuance of the Certificates, Sidley &
Austin, tax counsel to the Depositor, provided an opinion regarding certain tax
matters. A copy of the opinion is attached hereto as Exhibit 99.3.
The Class S Certificates has an initial aggregate notional
amount of $1,239,717,562. The Class A-1A Certificates have an initial aggregate
principal balance of $218,788,000. The Class A-1B Certificates have an initial
aggregate principal balance of $686,205,000. The Class A-2 Certificates have an
initial aggregate principal balance of $58,887,000. The Class A-3 Certificates
have an initial aggregate principal balance of $65,085,000. The Class A-4
Certificates have an initial aggregate principal balance of $18,596,000. The
Class B-1 Certificates have an initial aggregate principal balance of
$46,489,000. The Class B-2 Certificates have an initial aggregate principal
balance of $15,497,000. The Class B-3 Certificates have an initial aggregate
principal balance of $37,191,000. Class B-4 Certificates have an initial
aggregate principal balance of $21,695,000. The Class B-5 Certificates have an
initial aggregate principal balance of $9,298,000. The Class B-6 Certificates
have an initial aggregate principal balance of $12,397,000. The Class B-7
Certificates have an initial aggregate principal balance of $12,398,000. The
Class B-8 Certificates have
<PAGE>
an initial aggregate principal balance of $12,397,000. The Class C Certificates
have an initial aggregate principal balance of $24,794,562.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them in the Pooling and Servicing
Agreement.
Item 7. Financial Statements and Exhibits.
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(a) Financial statements of businesses acquired:
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Not applicable.
(b) Pro forma financial information:
--------------------------------
Not applicable.
(c) Exhibits:
---------
Exhibit No. Description
99.1 Pooling and Servicing Agreement.
99.2 Underwriting Agreement.
99.3 Opinion of Sidley & Austin with respect to certain tax matters.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: March 29, 1999
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ N. Dante LaRocca
--------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
<PAGE>
EXHIBIT INDEX
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The following exhibits are filed herewith:
Exhibit No.
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99.1 Pooling and Servicing Agreement.
99.2 Underwriting Agreement.
99.3 Opinion of Sidley & Austin with respect to certain tax matters.
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Execution Copy
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DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
GE CAPITAL LOAN SERVICES, INC.,
as Master Servicer,
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee and REMIC Administrator,
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1999
------------------------------
$1,239,717,562
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
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TABLE OF CONTENTS
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<TABLE>
<CAPTION>
Section Page
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
<S> <C> <C>
1.01. Defined Terms............................................................................. 2
1.02. General Interpretive Principles........................................................... 43
1.03. Certain Calculations in Respect of the Mortgage Pool...................................... 43
1.04. Cross-Collateralized Mortgage Loans....................................................... 45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
2.01. Conveyance of Mortgage Loans.............................................................. 46
2.02. Acceptance of Mortgage Assets by Trustee.................................................. 48
2.03. Certain Repurchases and Substitutions of Mortgage Loans by the Originators................ 50
2.04. Representations and Warranties of the Depositor........................................... 54
2.05. Representations and Warranties of the Master Servicer..................................... 55
2.06. Representations and Warranties of the Special Servicer.................................... 57
2.07. Representations and Warranties of the Trustee............................................. 59
2.08. Representations and Warranties of the REMIC Administrator................................. 60
2.09. Designation of the Certificates........................................................... 62
2.10. Creation of REMIC I; Issuance of REMIC I Regular Interests and Class R-I Certificates..... 63
2.11. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC I Regular Interests by Trustee................................................... 65
2.12. Creation of REMIC II; Issuance of REMIC II Regular Interests
and Class R-II Certificates............................................................ 65
2.13. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC II Regular Interests by Trustee.................................................. 67
2.14. Creation of REMIC III; Issuance of REMIC III Certificates................................. 67
2.15. Acceptance of Grantor Trusts by Trustee; Issuance of Class D Certificates................. 70
</TABLE>
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<TABLE>
<CAPTION>
Section Page
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
<S> <C> <C>
3.01. Administration of the Mortgage Loans...................................................... 72
3.02. Collection of Mortgage Loan Payments...................................................... 73
3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts................................................... 73
3.04. Collection Account, Distribution Account and Interest Reserve Account..................... 75
3.05. Permitted Withdrawals From the Collection Account,
the Distribution Account and the Interest Reserve Account.............................. 78
3.06. Investment of Funds in the Collection Account, Interest Reserve Account,
Servicing Accounts, Reserve Accounts and the REO Account............................... 82
3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage............. 84
3.08. Enforcement of Alienation Clauses......................................................... 86
3.09. Realization Upon Defaulted Mortgage Loans................................................. 87
3.10. Trustee to Cooperate; Release of Mortgage Files........................................... 89
3.11. Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of
Servicing Advances; Payment of Certain Expenses; Obligations of the Trustee
and any Fiscal Agent regarding Back-up Servicing Advances.............................. 91
3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports..... 95
3.13. Annual Statement as to Compliance......................................................... 97
3.14. Reports by Independent Public Accountants................................................. 98
3.15. Access to Certain Information............................................................. 98
3.16. Title to REO Property; REO Account........................................................ 99
3.17. Management of REO Property............................................................... 100
3.18. Sale of Mortgage Loans and REO Properties................................................. 102
3.19. Additional Obligations of Master Servicer................................................. 105
3.20. Modifications, Waivers, Amendments and Consents........................................... 109
3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping........ 112
3.22. Sub-Servicing Agreements.................................................................. 113
3.23. Controlling Class Representative.......................................................... 115
3.24. Certain Rights and Powers of the Controlling Class Representative......................... 117
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Distributions............................................................................. 120
4.02. Statements to Certificateholders; Certain Other Reports................................... 130
4.03. P&I Advances; Advances relating to the Master Servicer Remittance Amount.................. 132
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses.......................... 135
4.05. Calculations.............................................................................. 136
</TABLE>
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<TABLE>
<CAPTION>
Section Page
ARTICLE V
THE CERTIFICATES
<S> <C> <C>
5.01. The Certificates.......................................................................... 137
5.02. Registration of Transfer and Exchange of Certificates..................................... 137
5.03. Book-Entry Certificates................................................................... 143
5.04. Mutilated, Destroyed, Lost or Stolen Certificates......................................... 144
5.05. Persons Deemed Owners..................................................................... 144
5.06. Certification by Certificate Owners....................................................... 144
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01. Liability of the Depositor, the Master Servicer, the Special Servicer
and the REMIC Administrator............................................................ 146
6.02. Merger, Consolidation or Conversion of the Depositor, the Master Servicer,
the Special Servicer or the REMIC Administrator........................................ 146
6.03. Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and the REMIC Administrator....................................... 146
6.04. Master Servicer, Special Servicer and REMIC Administrator Not to Resign................... 147
6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicer, the
Special Servicer and the REMIC Administrator.......................................... 148
6.06. Designation of Special Servicer by the Controlling Class.................................. 149
6.07. Master Servicer or Special Servicer as Owner of a Certificate............................. 150
ARTICLE VII
DEFAULT
7.01. Events of Default......................................................................... 151
7.02. Trustee to Act; Appointment of Successor.................................................. 156
7.03. Notification to Certificateholders........................................................ 157
7.04. Waiver of Events of Default............................................................... 157
7.05. Additional Remedies of Trustee Upon Event of Default...................................... 157
</TABLE>
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<TABLE>
<CAPTION>
Section Page
ARTICLE VIII
THE TRUSTEE
<S> <C> <C>
8.01. Duties of Trustee......................................................................... 158
8.02. Certain Matters Affecting the Trustee..................................................... 159
8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans......................................................... 161
8.04. Trustee and Fiscal Agent May Own Certificates............................................. 161
8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee,
REMIC Administrator and Fiscal Agent................................................... 161
8.06. Eligibility Requirements for Trustee...................................................... 163
8.07. Resignation and Removal of Trustee........................................................ 163
8.08. Successor Trustee......................................................................... 164
8.09. Merger or Consolidation of Trustee........................................................ 165
8.10. Appointment of Co-Trustee or Separate Trustee............................................. 165
8.11. Appointment of Custodians................................................................. 166
8.12. Access to Certain Information............................................................. 166
8.13. Appointment of Fiscal Agent............................................................... 168
8.14 Advance Security Arrangement.............................................................. 169
8.15. Filings with the Securities and Exchange Commission....................................... 170
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans.......................... 172
9.02. Additional Termination Requirements....................................................... 174
ARTICLE X
ADDITIONAL TAX PROVISIONS
10.01. Tax Administration........................................................................ 175
10.02. Depositor, Master Servicer, Special Servicer, Trustee and Fiscal Agent
to Cooperate with REMIC Administrator.................................................. 178
10.03. Fees of the REMIC Administrator........................................................... 178
10.04. Use of Agents............................................................................. 178
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE XI
MISCELLANEOUS PROVISIONS
<S> <C> <C>
11.01. Amendment................................................................................. 179
11.02. Recordation of Agreement; Counterparts.................................................... 180
11.03. Limitation on Rights of Certificateholders................................................ 180
11.04. Governing Law............................................................................. 181
11.05. Notices................................................................................... 181
11.06. Severability of Provisions................................................................ 182
11.07. Successors and Assigns; Beneficiaries..................................................... 182
11.08. Article and Section Headings.............................................................. 182
11.09. Notices to and from the Rating Agencies and the Depositor................................. 182
11.10. Notices to Controlling Class Representative............................................... 184
11.11. Information Requested by GECA............................................................. 184
11.12. Complete Agreement........................................................................ 184
</TABLE>
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<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
EXHIBIT A-1 Form of Class S Certificates
EXHIBIT A-2 Form of Class A-1A and Class A-1B Certificates
EXHIBIT A-3 Form of Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2 Certificates
EXHIBIT A-4 Form of Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8
and Class C Certificates
EXHIBIT A-5 Form of Class D-1 and Class D-2 Certificates
EXHIBIT A-6 Form of Class R-I, Class R-II and Class R-III Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of GECA Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT C Letter of Representations among Depositor, Trustee and initial Depository
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2A Form of CSSA Loan Periodic Update File
EXHIBIT E-2B Form of CSSA Property File
EXHIBIT E-2C Form of CSSA Loan Set-up File
EXHIBIT E-3 Form of Comparative Financial Status Report
EXHIBIT E-4 Form of Delinquent Loan Status Report
EXHIBIT E-5 Form of Historical Loan Modification Report
EXHIBIT E-6 Form of Historical Loss Estimate Report
EXHIBIT E-7 Form of NOI Adjustment Worksheet
EXHIBIT E-8 Form of Operating Statement Analysis Report
EXHIBIT E-9 Form of REO Status Report
EXHIBIT E-10 Form of Watch List
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates
EXHIBIT G Form of Transferee Certificate in Connection with ERISA
(Definitive Subordinated Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Residual
Interest Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Residual Interest Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M-1 Form of Column Mortgage Loan Purchase and Sale Agreement
EXHIBIT M-2 Form of GECA Mortgage Loan Purchase and Sale Agreement
EXHIBIT N Form of Union Capital Agreement
EXHIBIT O Schedule of Designated ARD Loans
</TABLE>
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<PAGE>
This Pooling and Servicing Agreement, is dated and effective as of March 1,
1999, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, GE CAPITAL LOAN
SERVICES, INC. as Master Servicer, BANC ONE MORTGAGE CAPITAL MARKETS, LLC as
Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as Trustee
and REMIC Administrator.
PRELIMINARY STATEMENT:
Column (as defined herein) has sold to the Depositor, pursuant to the
Mortgage Loan Purchase and Sale Agreement dated as of March 15, 1999 (as such
may be amended, the "Column Mortgage Loan Purchase and Sale Agreement"), between
Column and the Depositor, those Original Mortgage Loans (as defined herein)
identified as of the date hereof on the schedule attached hereto as Exhibit
B-1A. A form of the Column Mortgage Loan Purchase and Sale Agreement is attached
hereto as Exhibit M-1.
GECA (as defined herein) has sold to the Depositor, pursuant to the
Mortgage Loan Purchase and Sale Agreement dated as of March 15, 1999 (as such
may be amended, the "GECA Mortgage Loan Purchase and Sale Agreement"), between
GECA and the Depositor, those Original Mortgage Loans identified as of the date
hereof on the schedule attached hereto as Exhibit B-1B. A form of the GECA
Mortgage Loan Purchase and Sale Agreement is attached hereto as Exhibit M-2.
The parties hereto desire to provide for, among other things, (i) the
creation of a common law trust, (ii) the transfer of the Original Mortgage
Loans, together with certain related rights, funds and property, by the
Depositor to the Trustee for the benefit of the Certificateholders (as defined
herein), (iii) the issuance of mortgage pass-through certificates in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the trust fund to be created hereunder, and (iv) the servicing and
administration of the Mortgage Loans (as defined herein), including the Original
Mortgage Loans, and the other assets that from time to time shall constitute
part of the trust fund to be created hereunder.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Section 1.01, subject to modification in
accordance with Section 1.04.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a 30/360
Basis.
"Accrued Certificate Interest": The interest accrued from time to time in
respect of any Class of Regular Interest Certificates, calculated in accordance
with Section 2.14(g).
"Accrued Component Interest": The interest accrued from time to time in
respect of any Class S REMIC III Regular Interest, calculated in accordance with
Section 2.14(f).
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust within the
meaning of Treasury regulation Section 1.856- 6(b)(1), which is the first day on
which the Trust 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": A Mortgage Loan that accrues interest on an
Actual/360 Basis.
"Additional Collateral": Any non-real property (including any Letter of
Credit) pledged and/or delivered by the related Borrower and held by the
mortgagee to secure payment on any Mortgage Loan.
"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 principal balance of such
Mortgage Loan has been paid in full), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
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"Additional Master Servicing Compensation": As defined in Section 3.11(b).
"Additional Special Servicing Compensation": As defined in Section 3.11(d).
"Additional Trust Fund Expense": Any expense experienced with respect to
the Trust Fund and not otherwise included in the calculation of a Realized Loss
that would result in the Regular Interest Certificateholders' receiving less
than the full amount of principal and/or Distributable Certificate Interest to
which they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": That certain interest accrued on any Advance (and
compounded monthly) at the Reimbursement Rate, which is payable to the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the case may
be, all in accordance with Section 3.11(g) or Section 4.03(e), as applicable.
"Advance Security Arrangement": As defined in Section 8.14.
"Adverse Grantor Trust Event": Either (i) any impairment of the status of
either of Grantor Trust D-1 or Grantor Trust D-2 as a Grantor Trust or (ii) the
imposition of a tax upon either of Grantor Trust D-1 or Grantor Trust D-2 or any
of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated Certificates and
each Rating Agency that has assigned a rating thereto, as of any date of
determination, the qualification, downgrade or withdrawal of the rating then
assigned to such Class of Rated Certificates by such Rating Agency.
"Adverse REMIC Event": Either (i) any impairment of the status of any REMIC
Pool as a REMIC or (ii) except as permitted by Section 3.17(a), the imposition
of a tax upon any REMIC Pool or any of its assets or transactions (including the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax on prohibited contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
"Alternate Advancer": As defined in Section 4.03(g).
"A.M. Best": A.M. Best Company or its successor in interest.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
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<PAGE>
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Additional Interest shall
begin to accrue on such Mortgage Loan, which date is prior to the Stated
Maturity Date for such Mortgage Loan.
"Appraisal": With respect to any Mortgaged Property or REO Property as to
which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of a
Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance as of the
date of such appraisal of $1,000,000 or less, a limited appraisal and a summary
report) that (i) indicates the "market value" of the subject property (within
the meaning of 12 CFR ss. 225.62(g)) and (ii) is conducted by a Qualified
Appraiser.
"Appraisal Reduction Amount": With respect to any Required Appraisal Loan,
an amount (calculated as of the Determination Date immediately following the
later of (a) the date on which the most recent relevant Appraisal acceptable for
purposes of Section 3.19(c) hereof was obtained by the Special Servicer pursuant
to this Agreement and (b) the earliest of the relevant dates in respect of such
Required Appraisal Loan specified in the first sentence of Section 3.19(c)
hereof) equal to the excess, if any, of (x) the sum of (i) the Stated Principal
Balance of such Required Appraisal Loan, (ii) to the extent not previously
advanced by or on behalf of the Master Servicer, the Trustee or any Fiscal
Agent, all unpaid interest (net of related Servicing Fees, Default Interest and,
in the case of an ARD Loan after its Anticipated Repayment Date, Additional
Interest) accrued on such Required Appraisal Loan through the most recent Due
Date prior to such Determination Date, (iii) all unpaid Servicing Fees accrued
in respect of such Required Appraisal Loan, (iv) all related unreimbursed
Advances made by or on behalf of the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent in respect of such Required Appraisal Loan, together
with all unpaid Advance Interest accrued on such Advances, and (v) all currently
due but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property (net of any Escrow Payments or other reserves held by the Master
Servicer or the Special Servicer with respect to any such item), over (y) 90% of
an amount equal to (i) the Appraised Value of the related Mortgaged Property or
REO Property, as applicable, as determined by the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof, net of (ii) the amount of any
obligation(s) secured by any mortgage liens on such Mortgaged Property or REO
Property, as applicable, that are prior to the lien of the Required Appraisal
Loan. Notwithstanding the foregoing, if in the case of any Required Appraisal
Loan an Appraisal acceptable for purposes of Section 3.19(c) hereof is not
obtained within sixty (60) days following, and has not been obtained within the
twelve (12) month period preceding, the earliest of the relevant dates in
respect of such Required Appraisal Loan specified in clauses (i) - (v) of the
first sentence of Section 3.19(c) hereof, then until such Appraisal is obtained
the Appraisal Reduction Amount will equal 25% of the Stated Principal Balance of
such Required Appraisal Loan; provided, however, that upon receipt of an
Appraisal acceptable for purposes of Section 3.19(c) hereof, the Appraisal
Reduction Amount for such Required Appraisal Loan will be recalculated in
accordance with the preceding sentence.
"Appraised Value": With respect to each Mortgaged Property or REO Property,
the appraised value thereof (as is) based upon the most recent Appraisal
obtained pursuant to this Agreement but in no event based upon an Appraisal more
than twelve (12) months old.
"ARD Loan": A Mortgage Loan that provides for the accrual of Additional
Interest thereon if such Mortgage Loan is not paid in full on or prior to its
Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24.
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"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan, as such assignment may be amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for each Due Date coinciding with
or following its most recent scheduled maturity date (including the related
Stated Maturity Date or any extended maturity date) as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (provided that such Mortgage
Loan was not paid in full, and no other Liquidation Event occurred in respect
thereof, before the end of the Collection Period in which such maturity date
occurs), the scheduled monthly payment of principal and/or interest deemed to be
due in respect of such Mortgage Loan on such Due Date equal to the amount that
would have been due in respect thereof on such Due Date (other than any Default
Interest and, in the case of any ARD Loan, any Additional Interest) if such
Mortgage Loan had been required to continue to accrue interest in accordance
with its terms, and to pay principal in accordance with the amortization
schedule (if any) in effect immediately prior to, and without regard to the
occurrence of, such maturity date. With respect to any REO Mortgage Loan, for
any Due Date as of which the related REO Property remains part of the Trust
Fund, the scheduled monthly payment of principal and/or interest deemed to be
due in respect thereof on such Due Date equal to the Monthly Payment (or, in the
case of a Balloon Mortgage Loan described in the preceding sentence of this
definition, the Assumed Monthly Payment) that was due (or deemed due) in respect
of the related Mortgage Loan on the last Due Date prior to its becoming an REO
Mortgage Loan.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) the sum of (i) all amounts on deposit in the Distribution
Account as of 11:00 a.m., New York City time, on such Distribution Date, (ii) to
the extent not included in the amount described in clause (a)(i) of this
definition, any P&I Advances and/or Compensating Interest Payments that were
made on and in respect of such Distribution Date, and (iii) to the extent not
included in the amount described in clause (a)(i) of this definition, if such
Distribution Date occurs during the month of March of any year, the aggregate of
the Interest Reserve Amounts with respect to the Interest Reserve Loans
transferred from the Interest Reserve Account to the Distribution Account during
such month of March for distribution on such Distribution Date, net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
payments of principal (including Principal Prepayments) and interest,
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges and/or Additional Interest; (iv) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (v) of
Section 3.05(b), (v) if such Distribution Date occurs during the month of
February of any year or during the month of January of any year that is not a
leap year, the aggregate of the Interest Reserve Amounts with respect to the
Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and Section
3.05(b)(vi)) from the Distribution Account and deposited into the Interest
Reserve Account during such month of February or such month of January, as the
case may be, and held for future distribution and (vi) any amounts deposited in
the Distribution Account in error; provided that the Available Distribution
Amount for the Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(v) of this definition.
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"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date (or, in the case
of a Replacement Mortgage Loan, as of the related date of substitution) provides
for an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, a Balloon Payment is due on its Stated
Maturity Date.
"Balloon Payment": Any Monthly Payment payable on a Mortgage Loan at
scheduled maturity that is at least twice as large as the normal Monthly Payment
due on such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated March 1, 1999, relating to
trust funds established by the Depositor and publicly offered mortgage
pass-through certificates evidencing interests therein.
"Bid Allocation": With respect to the initial 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,
including, without limitation, reasonable attorneys' fees, and out-of-pocket
expenses incurred in connection with transferring the servicing of the Mortgage
Loans), multiplied by a fraction equal to (a) the Servicer Fee Amount for such
Sub-Servicer or the initial Master Servicer, as the case may be, as of such date
of determination, over (b) the aggregate of the Servicer Fee Amounts for all of
the Sub-Servicers and the initial Master Servicer as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Book-Entry Subordinated Certificate": Any Subordinated Certificate that
constitutes a Book-Entry Certificate.
"Borrower": The obligor or obligors on a Mortgage Note, including any
Person that has acquired the related Mortgaged Property and assumed the
obligations of the original obligor under the Mortgage Note.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, Minneapolis, Minnesota, either of
the cities in which the Primary Servicing Offices of the Master Servicer and the
Special Servicer are located or the city in which the Corporate Trust Office of
the Trustee is located, are authorized or obligated by law or executive order to
remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, as executed by the Trustee and authenticated and
delivered hereunder by the Certificate Registrar.
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"Certificate Factor": With respect to any Class of Regular Interest
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, provided, however, that: (i) neither a
Disqualified Organization nor a Non-United States Person shall be a "Holder" of,
or a "Certificateholder" with respect to, a Residual Interest Certificate for
any purpose hereof; and (ii) solely for purposes of giving any consent,
approval, direction or waiver pursuant to this Agreement that specifically
relates to the rights, duties and/or obligations hereunder of any of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or any Fiscal Agent in its respective capacity as such (other than
any consent, approval or waiver contemplated by any of Sections 3.23, 3.24 and
6.06), any Certificate registered in the name of such party or in the name of
any Affiliate thereof 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 specifically relates to such party has been
obtained. The Certificate Registrar shall be entitled to request and
conclusively 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
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Certificate Notional Amount": With respect to any Class S Certificate, the
hypothetical or notional principal amount on which such Certificate accrues (or
is deemed to accrue) interest from time to time, which, as of any date of
determination, is equal to the product of (a) the then Certificate Factor for
the Class S Certificates, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any 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 Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Principal Balance Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
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"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation and having the same
payment terms. The respective Classes of Certificates are designated in Section
2.09(a). Any reference in any other Section or Subsection of this Agreement to
any Certificate or Certificates preceded by a Class designation shall be to a
Certificate or Certificates of the Class so designated in Section 2.09(a).
"Class A Certificate": Any of the Certificates designated as such in
Section 2.09.
"Class B Certificate": Any of the Certificates designated as such in
Section 2.09.
"Class D-1 Sub-Account": A sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and Grantor Trust D-1, but not an asset of any REMIC
Pool.
"Class D-2 Sub-Account": A sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and Grantor Trust D-2, but not an asset of any REMIC
Pool.
"Class Notional Amount": The aggregate hypothetical or notional amount on
which the Class S Certificates (as a collective whole) are deemed to accrue
interest from time to time, as calculated in accordance with Section 2.14(d).
"Class Principal Balance": The aggregate principal balance outstanding from
time to time of any Class of Principal Balance Certificates, as calculated in
accordance with Section 2.14(e).
"Class S REMIC III Regular Interest": Any of the separate beneficial
ownership interests in REMIC III represented by the Class S Certificates and, in
each such case, designated as a "regular interest" in REMIC III. The Class S
REMIC III Regular Interests have the designations and terms provided for in
Section 2.14.
"Class S Strip Rate": The per annum rate at which interest accrues in
respect of any Class S REMIC III Regular Interest during any Interest Accrual
Period, as set forth or otherwise calculated in accordance with Section 2.14(d).
"Closing Date": March 19, 1999.
"Code": The Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) in trust for the
Certificateholders, which shall be entitled "GE Capital Loan Services, Inc. [or
the name of any successor Master Servicer], as Master Servicer, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG1".
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"Collection Period": With respect to any Distribution Date, the period
commencing immediately following the Determination Date in the calendar month
preceding the month in which such Distribution Date occurs (or, in the case of
the initial Distribution Date, commencing immediately following the Cut-off
Date) and ending on and including the Determination Date in the calendar month
in which such Distribution Date occurs.
"Column": Column Financial, Inc. or its successor in interest.
"Column Mortgage Loan": Any of the Mortgage Loans sold by Column to the
Depositor pursuant to the Column Mortgage Loan Purchase and Sale Agreement,
which Mortgage Loans are identified on Exhibit B-1A.
"Column Mortgage Loan Purchase and Sale Agreement": As defined in the
Preliminary Statement.
"Column Third Party Mortgage Loan": Any Column Mortgage Loan originated by
Union Capital.
"Commission": The Securities and Exchange Commission or any successor
thereto.
"Comparative Financial Status Report": A report substantially containing
the information described in Exhibit E-3 attached hereto, including, among other
things, the occupancy and Debt Service Coverage Ratio for each Mortgage Loan or
the related Mortgaged Property, as applicable, as of the Determination Date
immediately preceding the preparation of such report and the revenue and net
operating income for each of the following three periods (to the extent such
information is available): (i) the most current available year-to-date, (ii) the
previous two full fiscal years, and (iii) the "base year" (representing the
original analysis of information used as of the Cut-off Date). For the purposes
of the production by the Master Servicer or the Special Servicer of any such
report that is required to state information for any period prior to the Cut-off
Date, the Master Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the related Mortgage Loan Seller, by the related
Borrower or (x) in the case of such a report produced by the Master Servicer, by
the Special Servicer (if other than the Master Servicer or an Affiliate thereof)
and (y) in the case of such a report produced by the Special Servicer, by the
Master Servicer (if other than the Special Servicer or an Affiliate thereof).
"Compensating Interest Payment": With respect to any Distribution Date, any
payment made by the Master Servicer pursuant to Section 3.19(a) to cover
Prepayment Interest Shortfalls incurred during the related Collection Period.
"Component Notional Amount": The hypothetical or notional amount on which
any Class S REMIC III Regular Interest accrues interest from time to time, as
calculated in accordance with Section 2.14(d).
"Controlling Class": As of any date of determination, the Class of
Principal Balance Certificates with the lowest payment priority pursuant to
Section 4.01(a), that has a then outstanding Class Principal Balance (net of
such Class' allocable share (calculated as set forth below) of any Appraisal
Reduction Amounts then in effect) that is not less than 20%of its initial Class
Principal Balance; provided
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that, if no Class of Principal Balance Certificates has a Class Principal
Balance that satisfies the foregoing requirement, then the Controlling Class
shall be the Class of Principal Balance Certificates with the largest Class
Principal Balance (net of such Class' allocable share (calculated as set forth
below) of any Appraisal Reduction Amounts then in effect) then outstanding. For
purposes of this definition, the Class A-1A and Class A-1B Certificates shall be
treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class. In addition,
solely for purposes of selecting the Controlling Class hereunder, the aggregate
amount of any Appraisal Reduction Amounts existing from time to time shall be
allocated among the respective Classes of Principal Balance Certificates as
follows (provided, however, that no actual reduction in the Class Principal
Balance of any Class of Principal Balance Certificates shall occur in connection
with such allocation): (a) first, to the Class C, Class B-8, Class B-7, Class
B-6, Class B- 5, Class B-4, Class B-3, Class B-2, Class B-1, Class A-4, Class
A-3 and Class A-2 Certificates, in that order, in each case to the extent of the
lesser of (i) the related Class Principal Balance and (ii) the portion of such
aggregate amount of Appraisal Reduction Amounts not already allocated to a more
subordinate Class; and (b) then, to the extent that any portion of such
aggregate amount of Appraisal Reduction Amounts still remains, to the Class A-1A
and Class A-1B Certificates on a pro rata basis in accordance with the relative
sizes of their Class Principal Balances.
"Controlling Class Representative": As defined in Section 3.23(a).
"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 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Mortgage Loan" (other than by reason of (i) a
Liquidation Event occurring in respect of such Mortgage Loan or (ii) the related
Mortgaged Property becoming an REO Property).
"Corresponding REMIC II Regular Interest": With respect to any Class of
Principal Balance Certificates, the REMIC II Regular Interest that has an
alphabetical and, if applicable, numerical designation that is the same as the
alphabetical and, if applicable, numerical Class designation for such Class of
Principal Balance Certificates; and, with respect to any Class S REMIC III
Regular Interest, the REMIC II Regular Interest that has an alphabetical and, if
applicable, numerical designation that, when preceded by "S-", is the same as
the alphabetical and, if applicable, numerical designation for such Class S
REMIC III Regular Interest.
"Cross-Collateralized Group": Any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that pursuant to
Section 1.04 is deemed to be, or by its terms actually is, cross-defaulted and
cross-collateralized with any other Mortgage Loan.
"CSSA": The Commercial Real Estate Secondary Market and Securitization
Association, or any association or organization that is a successor thereto.
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"CSSA Loan Periodic Update File": The report substantially in the form and
containing the information described in Exhibit E-2A attached hereto.
"CSSA Loan Set-up File": The report substantially in the form and
containing the information described in Exhibit E-2C attached hereto.
"CSSA Property File": The report substantially in the form and containing
the information described in Exhibit E-2B hereto.
"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.
"Cut-off Date": March 1, 1999.
"Cut-off Date Balance": With respect to any Original Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all payments of principal 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, and without regard to the cross-collateralization in the
case of any Cross-Collateralized Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recent period of not
more than twelve (12) months or less than three months for which Net Operating
Income can be calculated (annualized if such period is less than twelve (12)
months), to (y) twelve times the amount of the Monthly Payment in effect for
such Mortgage Loan as of such date of determination.
"Default Charges": Default Interest and/or late payment charges that are
paid or payable, as the context may require, in respect of any Mortgage Loan or
REO Mortgage Loan.
"Defaulted Mortgage Loan": A Specially Serviced Mortgage Loan (i) that is
delinquent in an amount equal to at least two Monthly Payments (not including
the Balloon Payment, if any) or is delinquent thirty (30) days or more in
respect of its Balloon Payment, in either case such delinquency to be determined
without giving effect to any grace period permitted by the related Mortgage or
Mortgage Note and without regard to any acceleration of payments under the
related Mortgage and Mortgage Note, or (ii) as to which the Special Servicer
has, by written notice to the related Borrower, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Default Interest": With respect to any Mortgage Loan (or successor REO
Mortgage Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield Maintenance Charges, that represent interest
(exclusive, if applicable, of Additional Interest) in excess of interest accrued
on the principal balance of such Mortgage Loan (or REO Mortgage Loan) at the
related Mortgage Rate, such excess interest arising out of a default under such
Mortgage Loan.
"Definitive Certificate": As defined in Section 5.03(a).
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"Deleted Mortgage Loan": A Mortgage Loan which is repurchased from the
Trust or replaced with one or more Replacement Mortgage Loans, in either case as
contemplated by Section 2.03.
"Delinquent Loan Status Report": A report substantially in the form and
containing the information described in Exhibit E-4 attached hereto, including,
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 (1) delinquent 30-59 days, (2) delinquent 60-89 days, (3) delinquent 90
days or more, (4) current but specially serviced, or (5) in foreclosure but as
to which the related Mortgaged Property has not become an REO Property.
"Depositor": DLJ Commercial Mortgage Corp. 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 Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated ARD Loan": Any ARD Loan set forth on Exhibit O hereto.
"Determination Date": With respect to any calendar month, commencing in
April 1999, the fourth day of such month (or, if such fourth day is not a
Business Day, the immediately preceding Business Day). Each Determination Date
will relate to the Distribution Date in the same calendar month.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate": As defined in Section 4.01(b).
"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
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imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code
or (v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest 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
Principal Balance Certificates, for any Distribution Date, an amount of interest
equal to all Accrued Certificate Interest in respect of such Class of
Certificates for the related Interest Accrual Period, 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 decimal,
the numerator of which is the Accrued Certificate Interest in respect of such
Class of Certificates for the related Interest Accrual Period, and the
denominator of which is the aggregate Accrued Certificate Interest in respect of
all the Classes of Regular Interest Certificates for the related Interest
Accrual Period; and, with respect to the Class S Certificates for any
Distribution Date, the aggregate amount of Distributable Component Interest in
respect of all the Class S REMIC III Regular Interests for such Distribution
Date.
"Distributable Component Interest": With respect to any Class S REMIC III
Regular Interest, for any Distribution Date, an amount of interest equal to all
Accrued Component Interest in respect of such Class S REMIC III Regular Interest
for the related Interest Accrual Period, 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 decimal, the
numerator of which is the Accrued Component Interest in respect of such Class S
REMIC III Regular Interest for the related Interest Accrual Period, and the
denominator of which is the aggregate Accrued Certificate Interest in respect of
all the Classes of Regular Interest Certificates for the related Interest
Accrual Period.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG1".
"Distribution Date": With respect to any calendar month, commencing in
April 1999, the later of (i) the 10th day of such month (or, if such 10th day is
not a Business Day, the Business Day immediately following) and (ii) the fourth
Business Day following the Determination Date occurring in such month.
"DLJSC": Donaldson, Lufkin & Jenrette Securities Corporation or its
successor in interest.
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to any Mortgage Loan (and any successor REO
Mortgage Loan), the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan is scheduled to be first due.
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"EDGAR": The Electronic Data Gathering, Analysis, and Retrieval System of
the Commission, the computer system for the receipt, acceptance, review and
dissemination of documents submitted to the Commission in electronic format.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the long-term deposit
or long-term unsecured debt obligations of which (or of such institution's
parent holding company) are rated no less than "Aa2" by Moody's and, if then
rated thereby, "AA" by Fitch (if the deposits are to be held in the account for
more than thirty (30) days), or the short-term deposit or short-term unsecured
debt obligations of which (or of such institution's parent holding company) are
rated no less than "P-1" by Moody's and, if then rated thereby, "F-1+" by Fitch
(if the deposits are to be held in the account for thirty (30) days or less), in
any event at any time funds are on deposit therein, or (ii) a segregated trust
account 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), and which, in either case, has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination by federal or
state authority, or (iii) any other account that is acceptable to the Rating
Agencies (as evidenced by written confirmation to the Trustee from each Rating
Agency that the use of such account would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates), or (iv)
an account maintained with Bankers Trust Company or Norwest Bank Minnesota,
National Association if (A) the long term unsecured debt obligations thereof are
rated no less than "A+" by Fitch and "A1" by Moody's and (B) the short term
unsecured debt obligations thereof are rated no less than "P1" by Moody's.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Borrower for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": Any of the events described in Section 7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment, with respect to any Mortgage
Loan or REO Property (other than a Mortgage Loan that is paid in full and other
than a Mortgage Loan or REO Property, as the case may be, that
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is repurchased or replaced by Union Capital pursuant to the Union Capital
Agreement, repurchased or replaced by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase and Sale Agreement or purchased by the Master
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder pursuant to Section 9.01), that there has been a recovery of
all related Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries that will ultimately be recoverable.
"Fiscal Agent": A Person who is at any time appointed by the Trustee
pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement": As defined in Section 8.13.
"Fitch": Fitch IBCA, 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 other parties hereto, and specific ratings of Fitch IBCA, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than such references to "highest applicable rating category") shall, in the case
of Fitch, be deemed to refer to such applicable rating category of Fitch,
without regard to any plus or minus or other comparable rating qualification.
"FNMA": The Federal National Mortgage Association or any successor.
"GECA": GE Capital Access, Inc. or its successor in interest.
"GECA Mortgage Loan": Any of the Mortgage Loans sold by GECA to the
Depositor pursuant to the GECA Mortgage Loan Purchase and Sale Agreement.
"GECA Mortgage Loan Purchase and Sale Agreement": As defined in the
Preliminary Statement.
"Grantor Trust": A grantor trust as defined under Subpart E of Part 1 of
Subchapter J of the Code.
"Grantor Trust Certificate": Any of the Certificates designated as such in
Section 2.09.
"Grantor Trust D-1": The Grantor Trust designated as such in Section
2.15(a).
"Grantor Trust D-2": The Grantor Trust designated as such in Section
2.15(b).
"Ground Lease": The ground lease pursuant to which any Borrower holds a
leasehold interest in the related Mortgaged Property.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including those so identified pursuant to
CERCLA or any other federal, state or local
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environmental related laws and regulations now existing or hereafter enacted,
and specifically including asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products,
urea formaldehyde and any substances classified as being "in inventory", "usable
work in process" or similar classification which would, if classified as
unusable, be included in the foregoing definition.
"Historical Loan Modification Report": A report substantially in the form
and containing the information described in Exhibit E-5 attached hereto, and
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.
"Historical Loss Estimate Report": A report substantially in the form and
containing the information described in Exhibit E-6 attached hereto, and 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 and historically, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the REMIC Administrator, the
Trustee, any Fiscal Agent 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, either Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent or any
Affiliate thereof, and (iii) is not connected with the Depositor, either
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, any Fiscal Agent 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, either Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal
Agent 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, such
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, such Fiscal Agent or any Affiliate thereof, as the
case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35% 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 Trustee, the
REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as the Trust does not receive or derive any income from
such Person and provided that the relationship between such Person and the Trust
is at arm's length, all within the meaning of Treasury regulation Section 1.856-
4(b)(5), or any other Person upon receipt by the Trustee and the REMIC
Administrator of an Opinion of Counsel, which shall be at no expense to the
Trustee, the REMIC Administrator or the Trust, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such
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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 Pool Balance": The aggregate Cut-off Date Balance of all the
Original Mortgage Loans.
"Institutional Accredited Investor": An "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or any entity in which all of the equity owners come within such paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO Property, any
hazard insurance policy, flood insurance policy, title insurance policy,
earthquake insurance policy, environmental insurance policy, or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan (or
the related Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or REO Property or released to the related Borrower, in any case, in
accordance with the Servicing Standard.
"Interest Accrual Basis": The basis on which interest accrues in respect of
any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular Interest,
any Class S REMIC III Regular Interest or any Class of Regular Interest
Certificates, consisting of one of the following: (i) a 30/360 Basis; or (ii) an
Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular Interest,
any REMIC II Regular Interest, any Class S REMIC III Regular Interest or any
Class of Regular Interest Certificates, for any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
"Interest Reserve Account": The segregated account created and maintained
by the Trustee pursuant to Section 3.04(c) in trust for the Certificateholders,
which shall be entitled "Norwest Bank Minnesota, National Association [or the
name of any successor Trustee], as Trustee, in trust for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG1".
"Interest Reserve Amount": With respect to each Interest Reserve Loan and
each Distribution Date that occurs during February of each year and during
January of each year that is not a leap year, an amount equal to one-day's
interest at the related Mortgage Rate on the Stated Principal Balance of such
Interest Reserve Loan as of the Due Date in the month in which such Distribution
Date occurs (but prior to the application of any amounts due on such Due Date),
to the extent that a Monthly Payment is received in respect thereof for such Due
Date on or before the related Master Servicer Remittance Date or a P&I Advance
is made in respect thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan.
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"Interested Person": Any party hereto, Column, GECA, Union Capital, any
Certificateholder, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Company Act": The Investment Company Act of 1940, as amended.
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Liquidation Proceeds or otherwise, which represent late collections of the
principal and/or interest portions of a Monthly Payment or an Assumed Monthly
Payment in respect of such Mortgage Loan due or deemed due on a Due Date in a
previous Collection Period, or on a Due Date coinciding with or preceding the
Cut-off Date, and not previously recovered. With respect to any REO Mortgage
Loan, all amounts received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment or an Assumed Monthly Payment in respect
of the predecessor Mortgage Loan or late collections of the principal and/or
interest portions of an Assumed Monthly Payment in respect of such REO Mortgage
Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"Latest Possible Maturity Date": With respect to any REMIC I Regular
Interest, REMIC II Regular Interest, Class S REMIC III Regular Interest or Class
of Principal Balance Certificates, the Distribution Date designated as the
"latest possible maturity date" thereof solely for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any third-party
letter of credit delivered by or at the direction of the Borrower pursuant to
the terms of such Mortgage Loan in lieu of the establishment of, or deposit
otherwise required to be made into, a Reserve Fund.
"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 or replaced by Union Capital pursuant to the Union Capital
Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase and Sale Agreement, in each case as contemplated by Section 2.03; or
(iv) such Mortgage Loan is purchased by the Master Servicer, the Special
Servicer or the Majority Controlling Class Certificateholder pursuant to Section
3.18 or Section 9.01. With respect to any REO Property (and the related REO
Mortgage 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
Controlling Class Certificateholder pursuant to Section 3.18 or Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18
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(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage Loan or
REO Property (other than any Specially Serviced Mortgage Loan or REO Property
that is purchased by the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder pursuant to Section 3.18 or Section 9.01 or
that is repurchased or replaced by Union Capital pursuant to the Union Capital
Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase and Sale Agreement), the fee designated as such and payable to the
Special Servicer pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced Mortgage
Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (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 by
exercise of the power of eminent domain or condemnation, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and 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 Borrower in accordance with applicable
law and/or the terms and conditions of the related Mortgage Note and Mortgage;
(iii) the realization upon any deficiency judgment obtained against a Borrower;
(iv) the purchase of a Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder pursuant to Section 3.18(b) or by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or any other sale thereof pursuant
to Section 3.18(d); (v) the repurchase of a Mortgage Loan by Union Capital
pursuant to the Union Capital Agreement or by a Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase and Sale Agreement; (vi) the substitution of
one or more Replacement Mortgage Loans for a Deleted Mortgage Loan by Union
Capital pursuant to the Union Capital Agreement or by a Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement (such cash
amounts being any Substitution Shortfall Amounts); or (vii) the purchase of a
Mortgage Loan or REO Property by the Master Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any date of
determination, and without regard to the cross-collateralization in the case of
any Cross-Collateralized Mortgage Loan, 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.
"Majority Controlling Class Certificateholder": As of any date of
determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class or Classes
of Principal Balance Certificates that constitute(s) the Controlling Class as of
such date of determination.
"Master Servicer": GE Capital Loan Services, Inc., or its successor in
interest, in its capacity as master servicer hereunder, or any successor master
servicer appointed as herein provided.
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"Master Servicer Remittance Amount": With respect to any Master Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the Collection
Account as of the commencement of business on such Master Servicer Remittance
Date, net of (b) any portion of the amounts described in clause (a) of this
definition that represents one or more of the following: (i) collected Monthly
Payments that are due on a Due Date following the end of the related Collection
Period, (ii) any payments of principal (including Principal Prepayments) and
interest (including Additional Interest), Liquidation Proceeds and Insurance
Proceeds received after the end of the related Collection Period, (iii) any
Prepayment Premiums and/or Yield Maintenance Charges received after the end of
the related Collection Period, (iv) any amounts payable or reimbursable to any
Person from the Collection Account pursuant to clauses (ii) through (xix) of
Section 3.05(a), and (v) any amounts deposited in the Collection Account in
error; provided that the Master Servicer Remittance Amount for the Master
Servicer Remittance Date that occurs in the same calendar month as the
anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day preceding each
Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO Mortgage
Loan, the fee designated as such and payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan and REO
Mortgage Loan, 0.048% per annum.
"Maturity Assumptions": Collectively, the assumptions identified as the
"Maturity Assumptions" in the Prospectus Supplement.
"Memorandum": The final Private Placement Memorandum dated March 15, 1999,
relating to the Non-Registered Certificates delivered by the Depositor to the
Underwriter as of the Closing Date.
"Merrill Lynch": Merrill, Lynch, Pierce, Fenner & Smith Incorporated or its
successor in interest.
"Modified Mortgage Loan": Any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage, results
in a release of the lien of the Mortgage on any material portion of the
related Mortgaged Property without a corresponding Principal Prepayment in
an amount not less than the fair market value (as is) of the property to be
released, as determined by an Appraisal delivered to the Special Servicer
(at the expense of the related Borrower and upon which the Special Servicer
may conclusively rely); or
(C) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or reduces
the likelihood of timely payment of amounts due thereon.
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"Monthly Payment": With respect to any Mortgage Loan as of any Due Date,
the scheduled monthly payment (or, in the case of an ARD Loan after its
Anticipated Repayment Date, the minimum required monthly payment) of principal
and/or interest on such Mortgage Loan, including any Balloon Payment, that is
actually payable by the related Borrower 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
Borrower or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Loan after its Anticipated Repayment Date
shall not include Additional Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the other parties hereto, and specific ratings of
Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated. References herein to
"applicable rating category" (other than such references to "highest applicable
rating category") shall, in the case of Moody's, be deemed to refer to such
applicable rating category of Moody's, without regard to any plus or minus or
other comparable rating qualification.
"Mortgage": A mortgage, deed of trust, deed to secure debt or similar
document that secures a Mortgage Note and creates a lien on a Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to Sections
1.04 and 2.01, collectively the following documents:
(i) the original executed Mortgage Note, endorsed "Pay to the order of
Norwest Bank Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-CG1, without
recourse";
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in
clause (iv) of this definition, in each case (unless such document
has not yet been returned from the applicable recording office) with
evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment referred
to in clause (v) of this definition, in each case (unless such
document has not yet been returned from the applicable recording
office) with evidence of recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG1, in recordable form;
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(v) an original executed assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in favor of
Norwest Bank Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-CG1, in recordable
form;
(vi) originals or copies of any written assumption, modification, written
assurance and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title insurance;
(viii) filed copies 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 related Mortgage Loan
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement
in favor of the related Mortgage Loan Seller on record with the
applicable public office for UCC Financing Statements, an original
UCC-2 or UCC-3, as appropriate, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1;
(ix) any environmental indemnity agreement, power of attorney, guaranty,
property management agreement, Ground Lease, intercreditor
agreement, cash management agreement and lock-box agreement,
relating to such Mortgage Loan;
(x) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement
agreements) relating to, evidencing or constituting Additional
Collateral; and
(xi) any insurance certificates relating to hazard insurance policies
maintained by the Borrower with respect to the related Mortgaged
Property that are in the possession of the related Mortgage Loan
Seller;
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 and instruments required to be included
therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage and other security
documents contained in the related Mortgage File.
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"Mortgage Loan Purchase and Sale Agreements": The Column Mortgage Loan
Purchase and Sale Agreement and the GECA Mortgage Loan Purchase and Sale
Agreement.
"Mortgage Loan Schedule": Together, the two lists of Mortgage Loans
attached hereto as Exhibit B-1A and Exhibit B-1B, respectively, as such lists
may be amended from time to time in accordance with this Agreement. Such lists
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) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original and remaining
amortization term;
(viii) whether the Mortgage Loan is a Cross-Collateralized Mortgage Loan
and, if so, the other Mortgage Loans contained in the related
Cross-Collateralized Group;
(ix) whether the Mortgage Loan is an ARD Loan and, if so, the Anticipated
Repayment Date;
(x) whether such Mortgage Loan provides for defeasance and, if so, the
period during which defeasance may occur;
(xi) whether the Mortgage Loan is secured by a fee simple interest in the
Mortgaged Property; by the Borrower's leasehold interest, and a fee
simple interest, in the Mortgaged Property; or solely by a leasehold
interest in the Mortgaged Property;
(xii) the type of the Mortgaged Property;
(xiii) the name of the originator of the Mortgage Loan; and
(xiv) the Interest Accrual Basis.
"Mortgage Loan Sellers": GECA and Column.
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"Mortgage Note": The original executed note evidencing the indebtedness of
a Borrower under a Mortgage Loan, together with any rider, addendum or amendment
thereto, or any renewal, substitution or replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any successor
REO Mortgage Loans as of any particular date of determination.
"Mortgage Rate": With respect to any Mortgage Loan (and any successor REO
Mortgage Loan), the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Mortgage Loan from time to time in
accordance with the related Mortgage Note and applicable law, as such rate may
be modified in accordance with Section 3.20 or in connection with a bankruptcy,
insolvency or similar proceeding involving the related Borrower. In the case of
each of the ARD Loans, the related Mortgage Rate will be subject to increase in
accordance with the related Mortgage Note if the particular Mortgage Loan is not
paid in full by its Anticipated Repayment Date.
"Mortgaged Property": The real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount of the Compensating Interest Payment
remitted by the Master Servicer pursuant to Section 3.19(a) on the Master
Servicer Remittance Date related to such Distribution Date.
"Net Default Charges": With respect to any Mortgage Loan, any Default
Charges actually collected from the related Borrower or out of other collections
thereon (based on the allocations specified in Section 1.03), to the extent that
such Default Charges, together with any other Default Charges previously
collected with respect to such Mortgage Loan, exceed any and all Advance
Interest accrued on Advances made in respect of such Mortgage Loan.
"Net Investment Earnings": With respect to any Investment Account for any
Collection Period, the amount, if any, by which the aggregate of all interest
and other income realized during such Collection Period on funds held in such
Investment Account, exceeds the aggregate of all losses, if any, incurred during
such Collection Period in connection with the investment of such funds in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds).
"Net Investment Loss": With respect to any Investment 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 Investment Account in accordance with Section 3.06 (other
than losses of what would otherwise have constituted interest or other income
earned on such funds), exceeds the aggregate of all interest and other income
realized during such Collection Period on such funds; provided that, in the case
of any Investment Account and any particular investment of funds in such
Investment Account, Net Investment Loss shall not include any loss with respect
to such investment which 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.
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"Net Operating Income": With respect to any Mortgaged Property, the net
operating income derived from such Mortgaged Property for any specified period,
calculated in accordance with Exhibit K.
"NOI Adjustment Worksheet": A report prepared by the Special Servicer with
respect to Specially Serviced Mortgaged Loans and REO Mortgage Loans, and by the
Master Servicer with respect to all other Mortgage Loans, substantially in the
form and containing the information described in Exhibit E-7 attached hereto,
presenting the computations made in accordance with the methodology described in
such Exhibit to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's Certificate and
supporting documentation contemplated by Section 4.03(c), any P&I Advance
previously made or to be made in respect of any Mortgage Loan or any REO
Mortgage Loan that, as determined by the Master Servicer or, if applicable, the
Trustee or any Fiscal Agent, in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance previously made or to be made in respect of a Mortgage Loan or
REO Property that, as determined by the Master Servicer, the Special Servicer
or, if applicable, the Trustee or any Fiscal Agent, in its reasonable, good
faith judgment, will not be ultimately recoverable from late payments, Insurance
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan or REO Property.
"Non-Registered Certificate": Any Certificate that has not been registered
under the Securities Act. As of the Closing Date, the Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D-1, Class D-2, Class
R-I, Class R-II and Class R-III Certificates will constitute NonRegistered
Certificates.
"Non-United States Person": Any Person other than a United States Person.
"Officer's Certificate": A certificate signed by a Servicing Officer of the
Master Servicer or the Special Servicer or a Responsible Officer of the Trustee
or any Fiscal Agent, as the case may be.
"Operating Statement Analysis Report": As defined in Section 3.12(b).
"Opinion of Counsel": A written opinion of counsel (which counsel, in the
case of any such opinion of counsel relating to the taxation of the Trust Fund
or any portion thereof or the status of any of REMIC I, REMIC II or REMIC III as
a REMIC or either of Grantor Trust D-1 or Grantor Trust D-2 as a Grantor Trust
for taxation purposes, shall be Independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent
and the REMIC Administrator, but which may act as counsel to such Person)
acceptable to and delivered to the addressee(s) thereof and which Opinion of
Counsel, except as provided herein, shall not be at the expense of the Trustee
or the REMIC Administrator.
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"Original Mortgage Loans": Collectively, those Mortgage Loans identified on
the Mortgage Loan Schedule as being included in the Trust Fund as of the Closing
Date.
"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.
"P&I Advance": As to any Mortgage Loan or REO Mortgage Loan, any advance
made by the Master Servicer, the Trustee or any Fiscal Agent pursuant to Section
4.03.
"P&I Advance Date": The Business Day preceding each Distribution Date.
"Pass-Through Rate": The per annum rate at which interest accrues (or is
deemed to accrue) in respect of any Class of Regular Interest Certificates
during any Interest Accrual Period, as set forth in or otherwise calculated in
accordance with Section 2.14(d), in the case of the Class S Certificates, or
Section 2.14(e), in the case of each Class of Principal Balance Certificates.
"Percentage Interest": With respect to any Regular Interest 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 Class Principal Balance or Class Notional Amount, as the case may be, of the
relevant Class as of the Closing Date. With respect to a Grantor Trust
Certificate or Residual Interest Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performing Mortgage Loan": Any Corrected Mortgage Loan and any Mortgage
Loan as to which a Servicing Transfer Event has not occurred.
"Permitted Investments": Any one or more of the following obligations or
securities:
(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, provided that each such
obligation is backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the party
agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category of
each of Moody's and, if rated thereby, Fitch (or, in the case of
either Rating Agency, have such lower rating as will not result in
an Adverse Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee by such Rating
Agency);
(iii) federal funds, uncertificated certificates of deposit, time deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof, provided
that the short-term unsecured debt obligations
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of such bank or trust company are at the time of investment rated
in the highest short-term debt rating category of each of Moody's
and, if rated thereby, Fitch (or, in the case of either Rating
Agency, have such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates, as
confirmed in writing to the Trustee by such Rating Agency);
(iv) commercial paper of any corporation incorporated under the laws of
the United States or any state thereof (or of any corporation not so
incorporated, provided that 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),
provided that such commercial paper is rated in the highest
short-term debt rating category of each of Moody's and, if rated
thereby, Fitch (or, in the case of either Rating Agency, has such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, as confirmed in writing
to the Trustee by such Rating Agency);
(v) units of money market funds which maintain a constant net asset
value, provided that such units of money market funds are rated in
the highest applicable rating category of each of Moody's and, if
rated thereby, Fitch (or, in the case of either Rating Agency, have
such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, as confirmed in writing
to the Trustee by such Rating Agency); or
(vi) any other obligation or security that is acceptable to the Rating
Agencies and will not result in an Adverse Rating Event with respect
to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) 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, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than thirty (30) days and (Z) except in the case
of a Permitted Investment described in clause (v) above, a fixed interest rate
or an interest rate that is tied to a single interest rate index plus a single
fixed spread; and provided, further, that each investment described hereunder
must be a "cash flow investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee": Any Transferee of a Residual Interest Certificate
other than either a Disqualified Organization or a Non-United States Person.
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"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.
"Phase I Environmental Assessment": A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of Part II of the FNMA Multifamily Guide,
as amended from time to time.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Interest Certificateholder": As to any taxable year of
any REMIC Pool, the Holder of Certificates evidencing the largest Percentage
Interest in the Class of Residual Interest Certificates constituting the sole
class of "residual interests" in respect of such REMIC Pool.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests, the REMIC II Regular Interests, the Class
S REMIC III Regular Interests and the Certificates for federal income tax
purposes, the assumptions that each ARD Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Mortgage Loan is otherwise voluntarily
prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part made after its Due Date in
any Collection Period, any payment of interest (net of related Master Servicing
Fees and, further, net of any portion of such interest that represents Default
Interest or Additional Interest) actually collected from the related Borrower
and intended to cover the period from and after such Due Date to, but not
including, the date of prepayment (exclusive, however, of any related Prepayment
Premium or Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part made prior to its Due Date
in any Collection Period, the amount of interest, to the extent not collected
from the related Borrower (without regard to any Prepayment Premium or Yield
Maintenance Charge that may have been collected), that would have accrued on the
amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and, if applicable, exclusive of Default Interest and
Additional Interest).
"Prepayment Premium": With respect to any Mortgage Loan, any premium,
penalty or fee paid or payable, as the context requires, by a Borrower in
connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or any successor REO Mortgage Loan, to the extent
such premium, penalty or fee is calculated as a percentage of the principal
amount being prepaid or as a specified amount.
"Primary Servicing Office": The office of the Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"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 Trustee, in
its sole discretion, shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or
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administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Principal Balance Certificate": Any of the Certificates designated as such
in Section 2.09.
"Principal Balance Reduction: Any reduction made in the Class Principal
Balance of any Class of Principal Balance Certificates pursuant to Section
4.04(a), the Uncertificated Principal Balance of any REMIC II Regular Interest
pursuant to Section 4.04(b) or the Uncertificated Principal Balance of any REMIC
I Regular Interest pursuant to Section 4.04(c).
"Principal Distribution Amount": With respect to any Distribution Date, an
amount equal to the aggregate (without duplication) of the following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) received on the Mortgage Loans during the related Collection
Period, in each case net of any portion of the particular payment that
represents a Late Collection of principal for which a P&I Advance was
previously made for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off Date or
on a Due Date subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period that were received prior to
the related Collection Period;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds and Insurance Proceeds
received on the Mortgage Loans during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of such Mortgage Loans in accordance with Section 1.03, in each
case net of any portion of such proceeds that represents a Late Collection
of principal due on or before the Cut-off Date or for which a P&I Advance
was previously made for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Insurance Proceeds and
REO Revenues received in respect of any REO Properties during the related
Collection Period that were identified and applied by the Master Servicer
as recoveries of principal of the related REO Mortgage Loans in accordance
with Section 1.03, in each case net of any portion of such proceeds and/or
revenues that represents a Late Collection of principal due on or before
the Cut-off Date or for which a P&I Advance was previously made for a prior
Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
in respect of the Mortgage Loans and any REO Mortgage Loans with respect to
such Distribution Date.
"Principal Prepayment": Any voluntary payment of principal made by the
Borrower on a Mortgage Loan that is received in advance of its scheduled Due
Date, that is not accompanied by an amount
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of interest (without regard to any Prepayment Premium, Yield Maintenance Charge
and/or Additional Interest that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Proposed Plan": As defined in Section 3.17(a).
"Prospectus": The Base Prospectus and the Prospectus Supplement, together.
"Prospectus Supplement": That certain prospectus supplement dated March 15,
1999, relating to the Registered Certificates, that is a supplement to the Base
Prospectus.
"Purchase Price": With respect to any Mortgage Loan (or REO Property), a
cash price equal to the aggregate of (a) the outstanding principal balance of
such Mortgage Loan (or the related REO Mortgage Loan) as of the date of
purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate to, but not including,
the Due Date occurring in the Collection Period during which the applicable
purchase or repurchase occurs, (c) all related unreimbursed Servicing Advances,
and (d) solely in the case of a purchase by Union Capital pursuant to the Union
Capital Agreement or by a Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase and Sale Agreement, (i) all accrued and unpaid Advance Interest in
respect of related Advances and (ii) to the extent not otherwise included in the
amount described in the preceding clause (c), any costs and expenses incurred by
the Master Servicer (on behalf of the Trust) in enforcing the obligation of such
Person to purchase such Mortgage Loan.
"Qualified Appraiser": In connection with the appraisal of any Mortgaged
Property or REO Property, an Independent MAI-designated appraiser with at least
five (5) years of experience in respect of the relevant geographic location and
property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the replacement
of a Deleted Mortgage Loan as contemplated by Section 2.03, any other mortgage
loan which, on the date of substitution, (i) has a principal balance, after
deduction of the principal portion of any unpaid Monthly Payment due on or
before the date of substitution, not in excess of the Stated Principal Balance
of the Deleted Mortgage Loan; (ii) is accruing interest at a fixed rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has the same
Due Date as the Deleted Mortgage Loan; (iv) is accruing interest on the same
Interest Accrual Basis as the Deleted Mortgage Loan; (v) has a remaining term to
stated maturity not greater than, and not more than two years less than, that of
the Deleted Mortgage Loan and, in any event, has a Stated Maturity Date not
later than two years prior to the Rated Final Distribution Date; (vi) has a then
current Loan-to-Value Ratio not higher than, and a then current Debt Service
Coverage Ratio not lower than, the Loan-to-Value Ratio and Debt Service Coverage
Ratio, respectively, of the Deleted Mortgage Loan as of the Closing Date; (vii)
will comply (except in a manner that would not be adverse to the interests of
the
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Certificateholders (as a collective whole) in or with respect to such mortgage
loan), as of the date of substitution, with all of the representations relating
to the Deleted Mortgage Loan set forth in or made pursuant to the related
Mortgage Loan Purchase and Sale Agreement and, in the case of a Column Third
Party Mortgage Loan, the Union Capital Agreement; (viii) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; and (ix) constitutes a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided, however, that if more
than one mortgage loan is to be substituted for any Deleted Mortgage Loan, then
all such proposed Replacement Mortgage Loans shall, in the aggregate, satisfy
the requirement specified in clause (i) of this definition and each such
proposed Replacement Mortgage Loan shall, individually, satisfy each of the
requirements specified in clauses (ii) through (ix) of this definition; and
provided, further, that no mortgage loan shall be substituted for a Deleted
Mortgage Loan unless (x) such prospective Replacement Mortgage Loan shall be
acceptable to the Controlling Class Representative (or, if there is no
Controlling Class Representative then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, and (y) each Rating Agency shall have
confirmed in writing to the Trustee that such substitution will not in and of
itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by the party (i.e., GECA,
Column or Union Capital) effecting the substitution). It is understood and
agreed that the Controlling Class Representative (or, if no Controlling Class
Representative is then serving, the Holders of Certificates representing a
majority of the Voting Rights assigned to the Controlling Class) could find a
prospective Replacement Mortgage Loan unacceptable for any reason or no reason
whatsoever.
"Rated Certificate": Any of the Certificates to which a rating has been
assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": The Distribution Date in March 2032.
"Rating Agency": Each of Moody's and Fitch.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any
successor REO Mortgage 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 Mortgage 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)(c) of this definition, all unpaid interest accrued in
respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, to but
not including the related Due Date in the Collection Period in which the Final
Recovery Determination was made (exclusive, however, of any portion of such
unpaid interest that constitutes Default Interest or, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest), minus (c) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Mortgage Loan, as the case may be, during the Collection Period in which such
Final Recovery Determination was made (net of any related Servicing Advances
reimbursed therefrom and any related Liquidation Expenses paid therefrom); (2)
each defaulted Mortgage Loan as to which any portion of the principal or past
due interest payable thereunder was canceled in connection with a bankruptcy or
similar proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
the Special Servicer pursuant to Section 3.20, the amount of such principal or
past due interest
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(other than any Default Interest and, in the case of an ARD Loan after its
Anticipated Repayment Date, Additional Interest) so canceled; and (3) each
defaulted 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 Borrower or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or the Special Servicer pursuant to Section 3.20, the amount
of any consequent reduction in the interest portion of each successive Monthly
Payment due thereon (each such Realized Loss to be deemed to have been incurred
on the Due Date for each affected Monthly 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 Certificate that has been registered under
the Securities Act. As of the Closing Date, the Class S, Class A-1A, Class A-1B,
Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2 Certificates constitute
Registered Certificates.
"Regular Interest Certificate": Any of the Certificates designated as such
in Section 2.09.
"Reimbursement Rate": The rate per annum applicable to the accrual and
monthly compounding of Advance Interest, 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": Norwest Bank Minnesota, National Association or its
successor in interest, in its capacity as REMIC administrator hereunder, or any
successor REMIC administrator appointed as herein provided.
"REMIC Sub-Account": A sub-account of the Distribution Account established
pursuant to Section 3.04(b), which sub-account shall constitute an asset of the
Trust Fund and REMIC I, but not an asset of Grantor Trust D-1 or Grantor Trust
D-2.
"REMIC I": The segregated pool of assets designated as such in Section
2.10(a)
"REMIC I Regular Interest": Any of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and, in each such case,
designated as a "regular interest" in REMIC I. The REMIC I Regular Interests
have the designations and terms provided for in Section 2.10.
"REMIC I Remittance Rate": The per annum rate at which interest accrues in
respect of any REMIC I Regular Interest during any Interest Accrual Period, as
set forth in or otherwise calculated in accordance with Section 2.10(f).
"REMIC II": The segregated pool of assets designated as such in Section
2.12(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" in REMIC II. The REMIC II Regular
Interests have the designations and terms provided for in Section 2.12.
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"REMIC II Remittance Rate": The per annum rate at which interest accrues in
respect of any REMIC II Regular Interest during any Interest Accrual Period, as
set forth in or otherwise calculated in accordance with Section 2.12(f).
"REMIC III": The segregated pool of assets designated as such in Section
2.14(a).
"REMIC III Certificate": Any of the Certificates designated as such in
Section 2.09.
"REMIC Pool": Any of REMIC I, REMIC II and REMIC III.
"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.
"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 custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16(b) on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Banc One
Mortgage Capital Markets, LLC [or the name of any successor Special Servicer],
as Special Servicer, in trust for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG1".
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Mortgage Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Mortgage Loan shall be
deemed to provide for monthly payments of principal and/or interest equal to its
Assumed Monthly Payment and otherwise to have the same terms and conditions as
its predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan or the Trust's
acquisition of the subject REO Property). Each REO Mortgage Loan shall be deemed
to have an initial unpaid principal balance and Stated Principal Balance equal
to the unpaid principal balance and Stated Principal Balance, respectively, of
its predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Monthly Payments (other than any Balloon Payment), Assumed Monthly Payments (in
the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Servicing Fees and Advances
(together with any related unpaid Advance Interest),
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shall continue to be payable or reimbursable in the same priority and manner
pursuant to Section 3.05(a) to the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, in respect of an REO Mortgage
Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer on
behalf of the Trust for the benefit of the Certificateholders through
foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially in the form and containing the
information described in Exhibit E-9 attached hereto, including, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of such
report, among other things, (i) the Acquisition Date of such REO Property, (ii)
the amount of income collected with respect to such REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
related Collection Period and (iii) the value of the REO Property based on the
most recent appraisal or other valuation thereof available to the Special
Servicer as of such Determination Date (including any valuation prepared
internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Replacement Mortgage Loan": Any mortgage loan that is substituted by GECA,
Column or Union Capital for a Deleted Mortgage Loan as contemplated by Section
2.03.
"Request for Release": A request signed by a Servicing Officer of, as
applicable, the Master Servicer in the form of Exhibit D-1 attached hereto or
the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(c).
"Reserve Account": Any of the accounts established and maintained pursuant
to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts delivered
by the related Borrower to be held in escrow by or on behalf of the mortgagee
representing: (i) reserves for repairs, replacements, capital improvements
and/or environmental testing and remediation with respect to the related
Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; or (iii) amounts to be applied as a Principal Prepayment on such
Mortgage Loan or held as Additional Collateral in the event that certain leasing
or other economic criteria in respect of the related Mortgaged Property are not
met.
"Residual Interest Certificate": Any of the Certificates designated as such
in Section 2.09.
"Responsible Officer": When used with respect to the Trustee, the
President, the Treasurer, the Secretary, any Vice President, any Assistant Vice
President, any Trust Officer, any Assistant Secretary or any other officer of
the Trustee customarily performing functions similar to those performed by any
of
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the above designated officers and having direct responsibility for the
administration of this Agreement. When used with respect to any Fiscal Agent or
any Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Restricted Servicer Reports": Each of the Watch List, the Operating
Statement Analysis Report, the NOI Adjustment Worksheet and the Comparative
Financial Status Report.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any of the Certificates designated as such in Section
2.09.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate of the Class Principal Balances of the Class A-1A
Certificates and the Class A-1B Certificates outstanding immediately prior
thereto equals or exceeds the sum of (a) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date, plus (b) the lesser of (i) the Principal Distribution Amount
for such Distribution Date and (ii) the portion of the Available Distribution
Amount for such Distribution Date that will remain after the distributions of
Distributable Certificate Interest to be made on the Senior Certificates on such
Distribution Date have been so made.
"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 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 initial Master Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan, (a) the principal balance 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": Any of the accounts established and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses paid or to be paid, as the context requires,
out of its own funds, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of any REO Property, including (1) any such
costs and expenses associated with (a) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Sections 2.02(e),
2.03(b), 2.03(c), 3.03(c) and 3.09, (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "force placed" insurance policy purchased by the Master Servicer or
the Special 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
Liquidation Proceeds or Insurance Proceeds in respect of any such Mortgage Loan
or any REO Property, (d) any enforcement or judicial proceedings with respect to
any such Mortgage Loan, including foreclosures and similar proceedings, (e) the
operation, management, maintenance and liquidation of any REO Property, (f)
obtaining any Appraisal required to be obtained hereunder, and (g)
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UCC filings (to the extent that the costs thereof are not reimbursed by the
related Borrower), (2) the reasonable and direct out-of-pocket travel expenses
incurred by the Special Servicer in connection with performing inspections
pursuant to Section 3.12(a), (3) the cost of any Opinion of Counsel expressly
required to be obtained hereunder in connection with the servicing of any
particular Mortgage Loan, to the extent that the related Borrower fails to pay
the costs thereof, and (4) any other expenditure which is expressly designated
as a Servicing Advance herein; provided that 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 incurred by either such party
or any Affiliate thereof in connection with its purchase of any Mortgage Loan or
REO Property pursuant to any provision of this Agreement.
"Servicing Fees": With respect to any Mortgage Loan, the Master Servicing
Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be part
of the related Mortgage File, but including any correspondence file) in the
possession of the Master Servicer or the Special Servicer and relating to the
origination and servicing of any Mortgage Loan or the administration of any REO
Property.
"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 by
the Master Servicer or the Special Servicer, as applicable.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected Mortgage Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer and the
Special Servicer, subject to applicable law and the express terms of the
relevant Mortgage Loans, to service and administer the Mortgage Loans and REO
Properties for which it is responsible hereunder: (a) with the higher of (i) the
same care, skill, prudence and diligence with which the Master Servicer or the
Special Servicer, as the case may be, generally services and administers
comparable mortgage loans and real properties for other third parties pursuant
to agreements similar to this Agreement, giving due consideration to customary
and usual standards of practice of prudent institutional commercial mortgage
lenders and loan servicers servicing and administering their own mortgage loans
and real properties, and (ii) the same care, skill, prudence and diligence with
which the Master Servicer or the Special Servicer, as the case may be, generally
services and administers comparable mortgage loans and real properties owned by
it; (b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans, the full collection of all
Prepayment Premiums and Yield
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Maintenance Charges that may become payable under the Mortgage Loans and, if a
Mortgage Loan comes into and continues in default and no satisfactory
arrangements can be made for the collection of the delinquent payments
(including payments of Prepayment Premiums and Yield Maintenance Charges), 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 Mortgage Rate); and (c) without regard to: (i) any
relationship that the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, may have with the
related Borrower or with any other party to this Agreement; (ii) the ownership
of any Certificate by the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be; (iii) any
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances; (iv) the right of the Master Servicer (or any Affiliate
thereof) or the Special Servicer (or any Affiliate thereof), as the case may be,
to receive compensation for its services or reimbursement of costs hereunder
generally or with respect to any particular transaction, (v) any ownership by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, of any other mortgage loans or real
property or of the right to service or manage for others any other mortgage
loans or real property; and (vi) any obligation of the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, as a Mortgage Loan Seller, to pay any indemnity or cure any
Document Defect or Breach with respect to, or to repurchase or replace, any
Mortgage Loan.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any of
the following events has occurred:
(a) the related Borrower has failed to make when due any Monthly Payment
(including a Balloon Payment) or any other payment required under the
related Mortgage Note or the related Mortgage(s), which failure
continues, or the Master Servicer determines, in its reasonable, good
faith judgment, will continue, unremedied for sixty (60) days; or
(b) if the Master Servicer or any of its Affiliates then owns an economic
interest in the related Borrower, the related Borrower has failed to
make when due any Monthly Payment (including a Balloon Payment), which
failure continues unremedied as of the P&I Advance Date for the
Distribution Date related to the Collection Period in which such
Monthly Payment was due; or
(c) the Master Servicer has determined, in its reasonable, good faith
judgment, that a default in making a Monthly Payment (including a
Balloon Payment) or any other payment required under the related
Mortgage Note or the related Mortgage(s) is likely to occur within
thirty (30) days and either (i) the related Borrower has requested a
material modification of the related Mortgage Loan (other than a
waiver of a "due-on-sale" clause permitted under Section 3.08 or the
extension of the related maturity date) or (ii) such default is likely
to remain unremedied for at least sixty (60) days; or
(d) the Master Servicer has determined, in its reasonable, good faith
judgment, that a default, other than as described in clause (a) or (b)
above, has occurred that may materially impair the value of the
related Mortgaged Property as security for the
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Mortgage Loan, which default has continued unremedied for the
applicable cure period under the terms of the Mortgage Loan (or, if no
cure period is specified, for thirty (30) days); or
(e) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary action against the
related Borrower under any present or future federal or state
bankruptcy, insolvency or similar law or the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the related Borrower and such decree or order shall
have remained in force undischarged or unstayed for a period of sixty
(60) days; or
(f) the related Borrower shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to such Borrower or of or relating to all or
substantially all of its property; or
(g) the related Borrower shall have admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(h) the Master Servicer shall have received notice of the commencement of
foreclosure or similar proceedings with respect to the related
Mortgaged Property or Properties;
provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (h) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clauses (a) and (b)
above, if and when the related Borrower has made three consecutive
full and timely Monthly Payments under the terms of such Mortgage Loan
(as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Borrower or by
reason of a modification, waiver or amendment granted or agreed to by
the Master Servicer or the Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c), (e), (f)
and (g) above, if and when such circumstances cease to exist in the
reasonable, good faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above, if
and when such default is cured; and
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(z) with respect to the circumstances described in clause (h) above, if
and when such proceedings are terminated.
"Special Servicer": Banc One Mortgage Capital Markets, LLC or its successor
in interest, in its capacity as special servicer hereunder, or any successor
Special Servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and each REO Mortgage 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 Mortgage Loan, 0.25% per annum.
"Startup Day": With respect to each REMIC Pool, the day designated as such
in Section 2.10(a) (in the case of REMIC I), Section 2.12(a) (in the case of
REMIC II) or Section 2.14(a) (in the case of REMIC III), as applicable.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
specified in the related Mortgage Note (as in effect on the Closing Date or, in
the case of a Replacement Mortgage Loan, on the related date of substitution) on
which the last payment of principal is due and payable under the terms of such
Mortgage Note, without regard to any change in or modification of such terms in
connection with a bankruptcy or similar proceeding involving the related
Borrower 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 (and any
successor REO Mortgage Loan), a principal balance which (a) initially shall
equal the Cut-off Date Balance of such Mortgage Loan (or, in the case of any
Replacement Mortgage Loan, the unpaid principal balance thereof as of the
related date of substitution, after application of all payments of principal due
thereon on or before such date, whether or not received), and (b) shall be
permanently reduced on each subsequent Distribution Date (to not less than zero)
by (i) that portion, if any, of the Principal Distribution Amount for such
Distribution Date allocable to such Mortgage Loan (or successor REO Mortgage
Loan), and (ii) the principal portion of any Realized Loss incurred in respect
of such Mortgage Loan (or successor REO Mortgage Loan) during the related
Collection Period; provided that, if a Liquidation Event occurs in respect of
any Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Mortgage Loan, as the case may be, shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any of the Certificates designated as such in
Section 2.09.
"Sub-Servicer": Any Person with which the Master Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master Servicer
or the Special Servicer, on the one hand, and any Sub-Servicer, on the other
hand, relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
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"Substitution Shortfall Amount": In connection with the substitution of one
or more Replacement Mortgage Loans for any Deleted Mortgage Loan, the amount, if
any, by which the Purchase Price for such Deleted Mortgage Loan (calculated as
if it were to be repurchased, instead of replaced, on the relevant date of
substitution), exceeds the initial Stated Principal Balance or the initial
aggregate Stated Principal Balance, as the case may be, of such Replacement
Mortgage Loan(s).
"Successful Bidder": As defined in Section 7.01(c).
"Tax Matters Person": With respect to any REMIC Pool, the Person designated
as the "tax matters person" of such REMIC Pool in the manner provided under
Treasury regulation section 1.860F-4(d) and temporary Treasury regulation
section 301.6231(a)(7)-1T, which Person shall, pursuant to Section 10.01(b), be
the Plurality Residual Interest Certificateholder in respect of the related
Class of Residual Interest Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including Schedule
Q thereto, Quarterly Notice to Residual Interest Holder of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each
REMIC Pool due to its classification as a REMIC under the REMIC Provisions,
together with any and all other information, reports or returns that may be
required to be furnished to the Certificateholders or filed with the IRS under
any applicable provisions of federal tax law or any other governmental taxing
authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"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.
"Treasury Rate": As defined in Section 4.01(b).
"Trust": The trust created hereby.
"Trustee": Norwest Bank Minnesota, National Association or its successor in
interest, in its capacity as trustee hereunder, or any successor trustee
appointed as herein provided.
"Trustee Report": As defined in Section 4.02(a).
"Trustee's Fee": With respect to any Mortgage Loan or REO Mortgage Loan,
the fee designated as such and payable to the Trustee pursuant to Section
8.05(a).
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"Trustee's Fee Rate": 0.002% per annum.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II, REMIC
III, Grantor Trust D-1 and Grantor Trust D-2.
"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": The interest accrued from time to time
in respect of any REMIC I Regular Interest (calculated in accordance with
Section 2.10(g) hereof) or any REMIC II Regular Interest (calculated in
accordance with Section 2.12(g) hereof).
"Uncertificated Distributable Certificate Interest": With respect to any
REMIC I Regular Interest, for any Distribution Date, an amount of interest equal
to all Uncertificated Accrued Interest in respect of such REMIC I Regular
Interest for the related Interest Accrual Period, 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 decimal,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for the related Interest Accrual Period, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for the related Interest Accrual Period;
and, with respect to any REMIC II Regular Interest, for any Distribution Date,
an amount of interest equal to all Uncertificated Accrued Interest in respect of
such REMIC II Regular Interest for the related Interest Accrual Period, 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 decimal, the numerator of which is the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for the related Interest
Accrual Period, and the denominator of which is the aggregate Uncertificated
Accrued Interest in respect of all the REMIC II Regular Interests for the
related Interest Accrual Period.
"Uncertificated Principal Balance": The principal balance outstanding from
time to time of any REMIC I Regular Interest (calculated in accordance with
Section 2.10(e) hereof) or any REMIC II Regular Interest (calculated in
accordance with Section 2.12(e) hereof).
"Underwriters": DLJSC and Merrill Lynch.
"Union Capital": Union Capital Investments, LLC or its successor in
interest.
"Union Capital Agreement": With respect to each Mortgage Loan originated by
Union Capital, the Seller's Warranty Certificate dated as of March 15, 1999,
executed and delivered by Union Capital in favor of DLJ Mortgage Capital, Inc.,
the form of which is attached hereto as Exhibit N.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
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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.
"Unreimbursed Principal Balance Reduction": Any Principal Balance Reduction
made with respect to a Class of Principal Balance Certificates, a REMIC II
Regular Interest or a REMIC I Regular Interest for which no distribution or
deemed distribution of reimbursement has been made pursuant to Section 4.01(a),
Section 4.01(i) or Section 4.01(j), as applicable.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status Report,
the Historical Loan Modification Report, the Historical Loss Estimate Report,
the REO Status Report, the CSSA Loan Periodic Update File, the CSSA Property
File and the CSSA Loan Set-Up File.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Classes of Principal Balance
Certificates in proportion to their respective Class Principal Balances, and
1.0% of the Voting Rights shall be allocated to the Class S Certificates. Voting
Rights allocated to a particular Class of Certificates shall be allocated among
such Certificates in proportion to the respective Percentage Interests evidenced
thereby.
"Warranting Party": As defined in Section 2.03(a).
"Watch List": For any Determination Date, a report (substantially in the
form of Exhibit E-10) of all Mortgage Loans that constitute one of the following
types of Mortgage Loans as of such Determination Date (the "Watch List"): (i) a
Mortgage Loan that has a then current Debt Service Coverage Ratio that is less
than 1.10x; (ii) a Mortgage Loan as to which any required inspection of the
related Mortgaged Property conducted by the Master Servicer indicates a problem
that the Master Servicer determines can reasonably be expected to materially
adversely affect the cash flow generated by such Mortgaged Property; (iii) a
Mortgage Loan as to which the Master Servicer has actual knowledge of material
damage or waste at the related Mortgaged Property; (iv) a Mortgage Loan as to
which it has come to the Master Servicer's attention in the performance of its
duties under this Agreement (without any expansion of such duties by reason
thereof) that any tenant occupying 25% or more of the space in the related
Mortgaged Property (A) has vacated such space (without being replaced by a
comparable tenant and lease) or (B) has declared bankruptcy; (v) a Mortgage Loan
that is at least thirty (30) days delinquent in payment; and (vi) a Mortgage
Loan that is within sixty (60) days of maturity. No later than one Business Day
after each Determination Date, the Special Servicer shall provide the Master
Servicer with all information in its possession regarding the Specially Serviced
Mortgage Loans relevant to the preparation of the Watch List.
"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%.
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"year 2000 ready": With respect to any Person, all computers, hardware,
imbedded microchips, software and material date-affected technology used in such
Person's business operations are able to correctly and effectively store,
process and otherwise deal with date data from, into, between and otherwise
concerning the 20th and 21st centuries, and otherwise continue to function
properly and unimpaired with respect to all calendar dates falling on or after
January 1, 2000.
"Yield Maintenance Charge": With respect to any Mortgage Loan, any premium,
penalty or fee paid or payable, as the context requires, by a Borrower in
connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan, other than any Prepayment Premium.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby" and
other words of similar import refer to this Agreement as a whole and not to
any particular provision;
(vi) "or" is not exclusive; and
(vii) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Cross-Collateralized Group in
the form of payments from Borrowers, Insurance Proceeds and Liquidation
Proceeds, shall be applied by the Master Servicer among the Mortgage Loans
constituting such Cross-Collateralized Group in accordance with the express
provisions of the related loan documents and, in the absence of such express
provisions, on a pro rata basis in accordance with the respective amounts then
"due and owing" as to each such Mortgage Loan. All amounts collected in respect
of or allocable to any particular Mortgage Loan (whether or not such
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Mortgage Loan constitutes part of a Cross-Collateralized Group) in the form of
payments from Borrowers, Liquidation Proceeds or Insurance Proceeds shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Note and Mortgage 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 Servicing Advances and, if
applicable, unpaid Liquidation Expenses; second, as a recovery of accrued and
unpaid interest on such Mortgage Loan to, but not including, the date of receipt
(or, in the case of a full Monthly Payment from any Borrower, through the
related Due Date), exclusive, however, of any portion of such accrued and unpaid
interest that constitutes Default Interest or, in the case of an ARD Loan after
its Anticipated Repayment Date, that constitutes Additional Interest; third, as
a recovery of principal of such Mortgage Loan then due and owing, including by
reason of acceleration of the Mortgage Loan following a default thereunder (or,
if a Liquidation Event has occurred in respect of such Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Prepayment Premium or Yield Maintenance
Charge then due and owing under such Mortgage Loan; seventh, as a recovery of
any Default Charges then due and owing under such Mortgage Loan; eighth, as a
recovery of any assumption fees and modification fees then due and owing under
such Mortgage Loan; ninth, as a recovery of any other amounts then due and owing
under such Mortgage Loan other than remaining unpaid principal and, in the case
of an ARD Loan after its Anticipated Repayment Date, other than Additional
Interest; tenth, as a recovery of any remaining principal of such Mortgage Loan
to the extent of its entire remaining unpaid principal balance; and, eleventh,
in the case of an ARD Loan after its Anticipated Repayment Date, as a recovery
of accrued and unpaid Additional Interest on such ARD Loan to but not including
the date of receipt.
(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be treated: first, as a recovery of any
related and unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of accrued and unpaid interest on
the related REO Mortgage Loan to, but not including, the Due Date in the
Collection Period of receipt, exclusive, however, of any portion of such accrued
and unpaid interest that constitutes Default Interest or, in the case of an REO
Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment Date,
that constitutes Additional Interest; third, as a recovery of principal of the
related REO Mortgage Loan to the extent of its entire unpaid principal balance;
fourth, as a recovery of any Prepayment Premium or Yield Maintenance Charge
deemed to be due and owing in respect of the related REO Mortgage Loan; fifth,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that
relates to an ARD Loan after its Anticipated Repayment Date, accrued and unpaid
Additional Interest); and sixth, in the case of an REO Mortgage Loan that
relates to an ARD Loan after its Anticipated Repayment Date, any accrued and
unpaid Additional Interest.
(c) For the purposes of this Agreement, Additional Interest on an ARD Loan
or a successor REO Mortgage 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 Mortgage Loan,
notwithstanding that the terms of the related loan documents so permit. To the
extent any Additional Interest is not paid on a current basis, it shall be
deemed to be deferred interest.
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(d) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Mortgage Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby acknowledged
that certain groups of Mortgage Loans identified on the Mortgage Loan Schedule
as being cross-collateralized with each other are, in the case of each such
particular group of Mortgage Loans, evidenced by a single mortgage note and
secured by mortgages, deeds of trust and/or deeds to secure debt on all the
Mortgaged Properties identified on the Mortgage Loan Schedule as corresponding
to such group. Each such Mortgage Loan actually represents a portion of the
entire indebtedness evidenced by the related mortgage note that has been
allocated to the Mortgaged Property identified on the Mortgage Loan Schedule as
corresponding to such Mortgage Loan. Each of the Mortgage Loans constituting
each such group shall be deemed to be a separate Mortgage Loan that is (i)
evidenced by a mortgage note identical to the mortgage note that evidences such
group (but in a principal amount equal to the principal balance allocated to
such Mortgage Loan) and (ii) cross-defaulted and cross-collateralized with each
other Mortgage Loan in such group. In addition, it is hereby acknowledged that
certain other groups of Mortgage Loans identified on the Mortgage Loan Schedule
as being cross-collateralized with each other are, in the case of each such
particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust be
established pursuant to this Agreement and, further, that such trust be
designated as "DLJ Commercial Mortgage Trust 1999- CG1". Norwest Bank Minnesota,
National Association is hereby appointed, and does hereby agree, to act as
Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, assign, transfer and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders, all the right, title and
interest of the Depositor in, to and under (i) the Original Mortgage Loans, and
all payments under and proceeds of such Mortgage Loans received after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), together with all documents included in the related
Mortgage Files and any related Additional Collateral; (ii) any REO Property
acquired in respect of any such Mortgage Loan; (iii) such funds or assets as
from time to time are deposited in the Collection Account, the Distribution
Account, the Interest Reserve Account and, if established, the REO Account; (iv)
Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent related to the
foregoing, under Sections 9, 10, 13, 14, 15, 16, 17 and 19) of each Mortgage
Loan Purchase and Sale Agreement, (v) the Union Capital Agreement (insofar as
such right, title and interest was assigned to the Depositor under the Column
Mortgage Loan Purchase and Sale Agreement); and (vi) all other assets included
or to be included in the Trust Fund.
(c) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties to
constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be
deemed 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, (i) this Agreement shall constitute a security agreement under applicable
law, (ii) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in all of the Depositor's right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans subject hereto from time to time, all principal and interest
received on or with respect to such Mortgage Loans after the Closing Date (other
than scheduled payments of interest and principal due and payable on such
Mortgage Loans on or prior to the Cut-off Date or, in the case of a Replacement
Mortgage Loan, on or prior to the related date of substitution), all amounts
held from time to time in the Collection Account, the Distribution Account, the
Interest Reserve Account and, if established, the REO Account and all
reinvestment earnings on such amounts, and all of the Depositor's right, title
and interest under Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent
related to the foregoing, under Sections 9, 10, 13, 14, 15, 16, 17 and 19) of
each Mortgage Loan
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Purchase Agreement and under the Union Capital Agreement (insofar as, in the
case of the Union Capital Agreement, such right, title and interest was assigned
to the Depositor under the Column Mortgage Loan Purchase Agreement), (iii) the
possession by the Trustee or its agent of the Mortgage Notes with respect to the
Mortgage Loans subject hereto from time to time and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" or possession by a purchaser or
person designated by such secured party for the purpose of perfecting such
security interest under applicable law, and (iv) notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 substantially in the form attached as Exhibit
J hereto in all appropriate locations in the State of New York promptly
following the initial issuance of the Certificates, and the Master Servicer
shall prepare and file at each such office, and the Trustee shall execute,
continuation statements with respect thereto, in each case within six months
prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee and the Master
Servicer in preparing and filing such continuation statements. This Section
2.01(c) shall constitute notice to the Trustee pursuant to any requirements of
the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
requested the Mortgage Loan Sellers, pursuant to their respective Mortgage Loan
Purchase Agreements, to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed thereby, on or before
the Closing Date, the Mortgage File and any Additional Collateral (other than
Reserve Funds) for each Original Mortgage Loan so assigned; provided that if, as
to any Mortgage Loan, there shall not have been delivered the original or a copy
of the related lender's title insurance policy referred to in the definition of
"Mortgage File" solely because such policy has not yet been issued, the delivery
obligations of the related Mortgage Loan Seller and/or, in the case of any
Column Third Party Mortgage Loan, Union Capital as contemplated by this Article
shall be deemed to be satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, so long as
(i) GECA, Column or Union Capital, as applicable, shall have delivered to the
Trustee on or before the Closing Date a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, (ii) GECA, Column or Union
Capital, as applicable, is obligated under the related Mortgage Loan Purchase
and Sale Agreement or the Union Capital Agreement, as applicable, to deliver to
the Trustee, promptly following the receipt thereof, the original related
lender's title insurance policy (or a copy thereof), and (iii) as of the date
that is 180 days following the Closing Date, GECA, Column or Union Capital, as
applicable, has delivered to the Trustee or a Custodian appointed thereby the
original related lender's title insurance policy. The Depositor shall deliver to
the Trustee on or before the Closing Date a fully executed counterpart of each
Mortgage Loan Purchase and Sale Agreement and the Union Capital Agreement.
(e) As soon as reasonably possible, and in any event within 45 days after
the later of (i) the Closing Date (or, in the case of a Replacement Mortgage
Loan substituted as contemplated by Section 2.03, after the related date of
substitution) and (ii) the date on which all recording information necessary to
complete the subject document is received by the Trustee, the Trustee shall
complete (to the extent necessary) and cause to be submitted for recording or
filing, as the case may be, in the appropriate office for real property records
or UCC Financing Statements, as applicable, each assignment of Mortgage and
assignment of Assignment of Leases in favor of the Trustee referred to in
clauses (iv) and (v) of the definition of "Mortgage File" that has been received
by the Trustee or a Custodian on its behalf and each
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UCC-2 and UCC-3 in favor of the Trustee referred to in clause (viii) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf. Each such assignment shall reflect that it should be
returned by the public recording office to the Trustee following recording, and
each such UCC-2 and UCC-3 shall reflect that the file copy thereof should be
returned to the Trustee 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. 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 the related Mortgage Loan Seller to prepare or
cause to be prepared promptly, pursuant to the related Mortgage Loan Purchase
and Sale Agreement, 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. The Depositor shall be responsible for
paying the fees and expenses of the Trustee in connection with the foregoing, as
more particularly provided for in that separate letter agreement dated January
27, 1999, between the Depositor and the Trustee.
(f) Also in connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
requested the Mortgage Loan Sellers, pursuant to their respective Mortgage Loan
Purchase Agreements, to deliver to and deposit with, or cause to be delivered to
and deposited with, the Master Servicer, on or before the Closing Date, the
following items: (i) originals or copies of all financial statements,
appraisals, environmental/engineering reports, leases, rent rolls and tenant
estoppels in the possession or under the control of the particular Mortgage Loan
Seller that relate to the Original Mortgage Loans and, to the extent they are
not required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the particular Mortgage Loan Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Original Mortgage Loans; and (ii) all unapplied Reserve Funds
and Escrow Payments in respect of the Original Mortgage Loans. The Master
Servicer shall hold all such documents, records and funds on behalf of the
Trustee in trust for the benefit of the Certificateholders.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee, by
its execution and delivery of this Agreement, hereby accepts receipt, directly
or through a Custodian on its behalf, of (i) the Original Mortgage Loans and all
documents delivered to it that constitute portions of the related Mortgage Files
and (ii) all other assets delivered to it and included in the Trust Fund, 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 any other
documents received by it that constitute portions of the Mortgage Files, and
that it holds and will hold the Original Mortgage Loans and such other assets,
together with any other Mortgage Loans and assets subsequently delivered to it
that are to be included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee or such
Custodian shall hold any Letter of Credit in a custodial capacity only and shall
have no obligation to maintain, extend the term of, enforce or otherwise pursue
any rights under such Letter of Credit. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, the Mortgage Loan
Sellers and the Underwriters that, as to each Original Mortgage Loan, except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Exhibit B-2, (i) the original Mortgage Note specified in
clause (i) of the
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definition of "Mortgage File" and all allonges thereto, if any, are in its
possession or the possession of a Custodian on its behalf, and (ii) such
Mortgage Note has been reviewed by it or by such Custodian on its behalf and (A)
appears regular on its face (handwritten additions, changes or corrections shall
not constitute irregularities if initialed by the Borrower), (B) appears to have
been executed and (C) purports to relate to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted and/or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 180 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated, (ii) the date on which all the affected Mortgage Loans are removed
from the Trust Fund and (iii) the second anniversary of the Closing Date), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.01, 2.02(c) and 2.02(d), certify in writing
(substantially in the form of Exhibit B-3) to each of the other parties hereto,
the Mortgage Loan Sellers and the Underwriters that, as to each Original
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) the original
Mortgage Note specified in clause (i) of the definition of "Mortgage File", the
original or certified copy of each recorded document specified in clauses (ii)
through (v) of the definition of "Mortgage File", the original or copy of the
policy of title insurance specified in clause (vii) of the definition of
"Mortgage File" and each document specified in clause (viii) of the definition
of "Mortgage File" (without regard to the parenthetical), is in its possession
or the possession of a Custodian on its behalf; (ii) if such report is due after
September 1, 1999, the recordation/filing contemplated by Section 2.01(e) has
been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Borrower), (B) appear to have been executed and (C) purport to relate to such
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
above and this Section 2.02(b) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (ii) (other than the zip code) and (vi)(B) of the
definition of "Mortgage Loan Schedule" accurately reflects the information set
forth in the Mortgage File. If GECA, Column or Union Capital substitutes a
Replacement Mortgage Loan for any Deleted Mortgage Loan as contemplated by
Section 2.03, the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to such Replacement
Mortgage Loan, and the Trustee shall deliver a comparable certification in
respect of such Replacement Mortgage Loan, on or about the 30th day following
the related date of substitution (and, if any exceptions are noted, every 90
days thereafter for so long as any exceptions remain or until such Replacement
Mortgage Loan is removed from the Trust Fund).
(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, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
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(d) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the related Mortgage Loan Seller as
to the purported genuineness of any such document and any signature thereon. It
is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), (vii) and (viii) of the definition of "Mortgage File" have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
(e) If any party hereto discovers that any document constituting a part of
a Mortgage File has not been properly executed, is missing, contains information
that does not conform in any material respect with the corresponding information
set forth in the Mortgage Loan Schedule (and the terms of such document have not
been modified by written instrument contained in the Mortgage File), or does not
appear to be regular on its face (each, a "Document Defect"), then such party
shall give prompt written notice thereof to the other parties hereto, including
(unless it is the party that discovered the Document Defect) the Trustee (which
shall in turn notify the Controlling Class Representative). Upon the Trustee's
discovery or receipt of notice of any such Document Defect, the Trustee shall
notify the Master Servicer, the Underwriters, the related Mortgage Loan Seller
and, in the case of a Column Third Party Mortgage Loan, Union Capital. If any
Document Defect is not corrected within 90 days of such notice, and such
Document Defect materially and adversely affects the value of any Mortgage Loan
or the interests of the Certificateholders therein, the Master Servicer (or, if
the affected Mortgage Loan is a GECA Mortgage Loan and GECA is an Affiliate of
the Master Servicer, subject to Section 8.02, the Trustee) shall, on behalf of
the Trust, exercise such rights and remedies as the Trust may have under the
Mortgage Loan Purchase and Sale Agreement and/or, in the case of any Column
Third Party Mortgage Loan, under the Union Capital Agreement with respect to
such Document Defect in such manner as it determines, in its good faith and
reasonable judgment, is in the best interests of the Certificateholders (taken
as a collective whole). Any and all reasonable out-of-pocket expenses incurred
by the Master Servicer (or, if applicable, the Trustee) (including, without
limitation, reasonable attorney fees and expenses) with respect to the
foregoing, together with any additional out-of-pocket expenses reasonably
incurred by the Master Servicer or Special Servicer in performing their
respective servicing functions as a result of a Document Defect, shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans by
the Originators.
(a) If any party hereto or any Certificateholder discovers or, other than
pursuant to this Section 2.03(a), receives notice of a breach of any
representation or warranty relating to any Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement or, in the
case of a Column Third Party Mortgage Loan, the Union Capital Agreement (a
"Breach"), the party or Certificateholder discovering or receiving such notice
of such Breach shall (without making any determination of the materiality or
adverseness thereof) give prompt written notice thereof to the other parties
hereto, including (unless it is the party that discovered the Breach) the
Trustee, and the Trustee shall in turn (without making any determination of the
materiality or adverseness thereof) notify the Controlling Class Representative.
If such Breach materially and adversely affects the value of such Mortgage Loan
or the interests of the Certificateholders therein, then promptly upon its
becoming aware thereof the Master Servicer (or, if the affected Mortgage Loan is
a GECA Mortgage Loan and GECA is an Affiliate of the Master Servicer, subject to
Section 8.02, the Trustee) shall require that the Person (whether it is the
related Mortgage Loan Seller or, in the case of a Column Third Party Mortgage
Loan, Union Capital) that made the breached representation or warranty (in any
event, for purposes of this Section 2.03, the "Warranting Party"),
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not later than 90 days (or such other period as is provided in the related
Mortgage Loan Purchase and Sale Agreement or, in the case of a Column Third
Party Mortgage Loan, the Union Capital Agreement, as applicable) from the
receipt by such Warranting Party of such notice, cure such Breach in all
material respects or repurchase the affected Mortgage Loan (as, if and to the
extent required by the related Mortgage Loan Purchase and Sale Agreement or, in
the case of a Column Third Party Mortgage Loan, the Union Capital Agreement, as
applicable) at the applicable Purchase Price (or, in the case of the repurchase
of a Column Third Party Mortgage Loan by Union Capital, at such other price as
is provided for in the Union Capital Agreement, with any shortfall between such
price and the applicable Purchase Price to be made up by Column as the related
Mortgage Loan Seller pursuant to the Column Mortgage Loan Purchase and Sale
Agreement); provided that if (i) such Breach does not relate to whether the
affected Mortgage Loan is a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, (ii) such Breach is capable of being cured but not
within such 90-day (or other) period, (iii) such Warranting Party has commenced
and is diligently proceeding with the cure of such Breach within such 90-day (or
other) period, and (iv) such Warranting Party shall have delivered to the
Trustee a certification executed on behalf of such Warranting Party by an
officer thereof setting forth the reason that such Breach is not capable of
being cured within an initial 90-day (or other) period, specifying what actions
such Warranting Party is pursuing in connection with the cure thereof and
stating that such Warranting Party anticipates that such Breach will be cured
within an additional period not to exceed 90 more days (a copy of which
certification shall be delivered by the Trustee to the Master Servicer, the
Special Servicer and the Controlling Class Representative), then such Warranting
Party shall have up to an additional 90 days to complete such cure (or, if it
fails to complete such cure, to repurchase the affected Mortgage Loan); and
provided, further, that, in lieu of effecting any such repurchase (but, in any
event, no later than such repurchase would have to have been completed), such
Warranting Party shall be permitted, during the three-month period following the
Closing Date (or during the two-year period following the Closing Date if the
affected Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount (or, in the case of the replacement of a Column Third Party
Mortgage Loan by Union Capital, to pay such other cash amount as is provided for
in the Union Capital Agreement, with any shortfall between such other cash
amount and the applicable Substitution Shortfall Amount to be made up by Column
as the related Mortgage Loan Seller pursuant to the Column Mortgage Loan
Purchase and Sale Agreement), subject to any other applicable terms and
conditions of the related Mortgage Loan Purchase and Sale Agreement or the Union
Capital Agreement, as the case may be, and this Agreement. If any substitution
for a Deleted Mortgage Loan is not completed in all respects by the end of the
three-month (or, if applicable, the two-year) period contemplated by the
preceding sentence, the Warranting Party (whether it is GECA, Column or Union
Capital) that desired to effect such substitution shall be barred from doing so
(and, accordingly, will be limited to the cure/repurchase remedies contemplated
hereby), and no party hereto shall be liable thereto for any loss, liability or
expense resulting from the expiration of such period. If any Mortgage Loan is to
be repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer (or, if the affected Mortgage Loan is a GECA Mortgage Loan and GECA is
an Affiliate of the Master Servicer, subject to Section 8.02, the Trustee) shall
designate the Collection Account as the account to which funds in the amount of
the applicable Purchase Price or Substitution Shortfall Amount (as the case may
be) are to be wired, and the Master Servicer shall promptly notify the Trustee
when such deposit is made. Any such repurchase or replacement of a Mortgage Loan
shall be on a whole loan, servicing released basis. Notwithstanding the
foregoing, if there exists in respect of any Column Third Party Mortgage Loan a
Breach on the part of Column under the Column Mortgage Loan Purchase and Sale
Agreement (other than a Breach of any of the representations and warranties of
Column relating to or affecting the status of the affected Mortgage Loan as a
"qualified mortgage" within the
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meaning of the REMIC Provisions) and a Breach on the part of Union Capital under
the Union Capital Agreement, and such Breaches give rise to a cure or
repurchase/substitution obligation under both the Column Mortgage Loan Purchase
and Sale Agreement and the Union Capital Agreement, then the Master Servicer
shall request Column to effect a cure of Column's Breach or to repurchase or
replace the affected Mortgage Loan only if Union Capital does not do so within
Union Capital's applicable cure/repurchase/substitution period, and the
cure/repurchase/substitution period for Column will be deemed not to commence
until such request is so made of Column; provided that such
cure/repurchase/substitution period for Column shall in no event extend more
than 90 days from the end of the cure/repurchase/substitution period for Union
Capital. It is hereby acknowledged and agreed that if any Breach or Document
Defect arises out of a failure to deliver a Mortgage Note for any Mortgage Loan,
such Breach or Document Defect, as the case may be, shall be cured for purposes
of this Agreement if the related Warranting Party delivers a copy of such
Mortgage Note, together with a "lost note affidavit" certifying that the
original of such Mortgage Note has been lost.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by GECA, Column or
Union Capital as contemplated by this Section 2.03, then, prior to the subject
repurchase or substitution, the Master Servicer shall use its best efforts,
subject to the terms of the related Mortgage Loans, to prepare and, to the
extent necessary and appropriate, have executed by the related Borrower and
record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto; provided that no
such termination shall be effected unless and until the Master Servicer and the
Trustee have received from the Depositor, the related Mortgage Loan Seller or,
in the case of a Column Third Party Mortgage Loan, Union Capital (i) an Opinion
of Counsel to the effect that such termination will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool and (ii) written confirmation from
each Rating Agency that such termination will not cause an Adverse Rating Event
to occur with respect to any Class of Rated Certificates. To the extent
necessary and appropriate, the Trustee shall execute (or, subject to Section
3.10, provide the Master Servicer with a limited power of attorney that enables
the Master Servicer to execute) the documentation referred to in the prior
sentence; provided that the Trustee shall not be liable for any misuse of any
such power of attorney by the Master Servicer. The Master Servicer shall advance
all costs and expenses incurred by the Trustee and the Master Servicer pursuant
to this paragraph, and such advances shall constitute and be reimbursable as
Servicing Advances. Neither the Master Servicer nor the Special Servicer shall
be liable to any Certificateholder or any other party hereto if the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph for any reason beyond the control of the
Master Servicer or Special Servicer, as the case may be.
Whenever one or more mortgage loans are substituted for a Deleted Mortgage
Loan as contemplated by this Section 2.03, the Master Servicer (or, if the
Deleted Mortgage Loan is a GECA Mortgage Loan and GECA is an Affiliate of the
Master Servicer, subject to Section 8.02, the Trustee) shall direct the
Warranting Party effecting the substitution to deliver the related Mortgage File
to the Trustee and to certify that such substitute mortgage loan satisfies or
such substitute mortgage loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan" and to
send such certification to the Trustee. No mortgage loan may be substituted for
a Deleted Mortgage Loan as contemplated by this Section 2.03 if the Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent a cure of the relevant Breach or Document Defect, the affected Mortgage
Loan
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will be required to be repurchased as contemplated hereby. Monthly Payments due
with respect to each Replacement Mortgage Loan (if any) after the related date
of substitution, and Monthly Payments due with respect to each Deleted Mortgage
Loan (if any) after the Cut-off Date and on or prior to the related date of
substitution, shall be part of the Trust Fund. Monthly Payments due with respect
to each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Deleted Mortgage
Loan (if any) after the related date of substitution, shall not be part of the
Trust Fund and are to be remitted by the Master Servicer to the Warranting Party
effecting the related substitution promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced as contemplated by
this Section 2.03, the Master Servicer (or, if the Deleted Mortgage Loan is a
GECA Mortgage Loan and GECA is an Affiliate of the Master Servicer, the Trustee)
shall direct the related Mortgage Loan Seller to amend the Mortgage Loan
Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable,
the substitution of the related Replacement Mortgage Loan(s); and, upon its
receipt of such amended Mortgage Loan Schedule, the Master Servicer shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of the Trust Fund and be subject to the terms of this Agreement in
all respects. The reasonable "out-of-pocket" costs and expenses incurred by the
Master Servicer and/or the Trustee pursuant to this Section 2.03 (including,
without limitation, reasonable attorney fees and expenses) shall constitute
Servicing Advances.
(b) Upon receipt of an Officer's Certificate from the Master Servicer to
the effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by
GECA, Column or Union Capital as contemplated by this Section 2.03 has been
deposited in the Collection Account, and further, if applicable, upon receipt of
the Mortgage File for each Replacement Mortgage Loan (if any) to be substituted
for a Deleted Mortgage Loan, together with the certification referred to in the
penultimate paragraph of Section 2.03(a) from the Warranting Party effecting the
substitution, if any, the Trustee shall: (i) release or cause the release of the
Mortgage File for the Deleted Mortgage Loan to the Person effecting the
repurchase/substitution or its designee; and (ii) execute and deliver such
instruments of release, transfer and/or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
Person effecting the repurchase/substitution or its designee the ownership of
the Deleted Mortgage Loan. In connection with any such repurchase or
substitution by GECA, Column or Union Capital, each of the Master Servicer and
the Special Servicer shall deliver to the Person effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the Person effecting the repurchase/substitution. In connection
with any repurchase or replacement of a Column Third Party Mortgage Loan by
Column, the Trustee shall assign to Column all right, title and interest of the
Trustee in respect of such Mortgage Loan under the Union Capital Agreement. The
costs and expenses incurred by the Master Servicer, the Special Servicer and/or
the Trustee pursuant to this Section 2.03(b) shall be reimbursable to each of
them as Servicing Advances in respect of the affected Mortgage Loan.
(c) The Mortgage Loan Purchase and Sale Agreements and the Union Capital
Agreement provide the sole remedies available to the Certificateholders, or the
Trustee on their behalf, respecting any Breach. If GECA, Column and/or Union
Capital defaults on its obligations to repurchase or replace any Mortgage Loan
as contemplated by this Section 2.03, the Master Servicer shall promptly notify
the Trustee
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and the Certificateholders (or, if the affected Mortgage Loan is a GECA Mortgage
Loan and GECA is an Affiliate of the Master Servicer, the Trustee shall notify
the Certificateholders). Thereafter, the Master Servicer (or, if the affected
Mortgage Loan is a GECA Mortgage Loan and GECA is an Affiliate of the Master
Servicer, subject to Section 8.02, the Trustee) shall take such actions on
behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations, including the institution and prosecution
of appropriate legal proceedings, as the Master Servicer (or, if applicable and
subject to Section 8.02, the Trustee) shall determine are in the best interests
of the Certificateholders (taken as a collective whole). Any and all reasonable
out-of-pocket expenses incurred by the Master Servicer (or, if applicable, the
Trustee) (including, without limitation, reasonable attorney fees and expenses)
with respect to the foregoing shall constitute Servicing Advances in respect of
the affected Mortgage Loan.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, 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 Delaware.
(ii) The Depositor's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Depositor'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 or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee, is
likely to affect materially and adversely either the ability of the Trustee
to perform its obligations under this Agreement or the financial condition
of the Trustee.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it 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 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, performance under and compliance with 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.
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(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriters, and (C) any recordation of the
assignments of Mortgage Loan documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
(vii) 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.
(viii) 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.
(ix) Immediately prior to the transfer of the Original Mortgage Loans
to the Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had good and marketable title to, and was the sole
owner and holder of, each such Mortgage Loan; and the Depositor has full
right and authority to sell, assign and transfer the Original Mortgage
Loans.
(x) The Depositor is transferring the Original Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of any and
all liens, pledges, charges and security interests created by or through
the Depositor.
(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 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 hereto.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate the Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party
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or by which it is bound, which breach or default, in the good faith and
reasonable judgment of the Master Servicer, 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.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with 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 consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that, if
determined adversely to the Master Servicer, would prohibit the Master
Servicer from entering into this Agreement or that, 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.
(viii) Each officer, director or employee of the Master Servicer with
responsibilities concerning the servicing and administration of any
Mortgage Loan is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c).
(ix) There is no event, condition or circumstance in existence that
constitutes (or, with notice or lapse of time, or both, would constitute)
an Event of Default on the part of the Master Servicer.
(x) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as of
the Closing Date with respect to the Mortgage Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
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(xi) To the best knowledge of the Master Servicer (which knowledge may
be based upon information obtained from vendors who have responded to the
Master Servicer's supplier inquiries and/or from information obtained by
the Master Servicer from sources which the Master Servicer reasonably
believes are reliable), by August 31, 1999 any custom-made software or
hardware designed or purchased or licensed by the Master Servicer, which
the Master Servicer has identified as being mission-critical to its
business for purposes of its operations and for purposes of compiling,
reporting or generating data required by this Agreement, will be capable of
accurately performing calculations or other processing with respect to
dates after December 31, 1999 as a result of the changing of the date from
1999 to 2000, including leap year calculations, when used for the purpose
for which it was intended, assuming that all other products, including
other software or hardware, when used in combination with such software or
hardware designed or purchased or licensed by the Master Servicer properly
exchange date data.
(b) The representations and warranties of the Master Servicer set forth in
Section 2.05(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any 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 hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.06. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, 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 Special Servicer's execution and delivery of, performance
under and compliance with this Agreement, 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 or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Special Servicer,
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.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions involving the Special Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
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(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, performance under 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 consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer that, if
determined adversely to the Special Servicer, would prohibit the Special
Servicer from entering into this Agreement or that, in the Special
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(viii) Each officer, director or employee of the Special Servicer with
responsibilities concerning the servicing and administration of any
Specially Serviced Mortgage Loan or REO Property is covered by errors and
omissions insurance in the amounts and with the coverage required by
Section 3.07(c).
(ix) There is no event, condition or circumstance in existence that
constitutes (or, with notice or lapse of time, or both, would constitute)
an Event of Default on the part of the Special Servicer.
(x) The Special Servicer is currently modifying its computer systems
and expects that, by August 31, 1999, it will be "year 2000 ready" such
that its operations and its ability to perform its obligations under this
Agreement will not be materially and adversely affected by the occurrence
of calendar year 2000. The Special Servicer is also assessing whether its
key vendors and subcontractors will be "year 2000 ready" by such date.
(b) The representations and warranties of the Special Servicer set forth in
Section 2.06(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any 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 hereto.
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(c) Any successor Special Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07. Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with, each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Trustee is duly organized, validly existing and in good
standing as a national banking association under the laws of the United
States and is, shall be or, if necessary, shall appoint a co-trustee that
is, in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, 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, which breach or
default, in the good faith and reasonable judgment of the Trustee is likely
to affect materially and adversely either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(iii) The Trustee 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 Trustee, enforceable against the Trustee 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 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, performance under and compliance with 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 either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
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(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(vii) 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 that, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(ix) The Trustee is currently modifying its computer systems and
expects that, by December 31, 1999, it will be "year 2000 ready" such that
its operations and its ability to perform its obligations under this
Agreement will not be materially and adversely affected by the occurrence
of calendar year 2000. The Trustee is also assessing whether its key
vendors and subcontractors will be "year 2000 ready" by such date.
(b) The representations and warranties of the Trustee set forth in Section
2.07(a) shall survive the execution and delivery of this Agreement and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any party hereto of any
breach of any of the foregoing representations, warranties and covenants, the
party discovering such breach shall give prompt written notice thereof to the
other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date of
its succession, each of the representations and warranties set forth in Section
2.07(a), subject to such appropriate modifications to the representation and
warranty set forth in Section 2.07(a)(i) to accurately reflect such successor's
jurisdiction of organization and whether it is a corporation, partnership, bank,
association or other type of organization.
SECTION 2.08. Representations and Warranties of the REMIC Administrator.
(a) The REMIC Administrator hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The REMIC Administrator is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States.
(ii) The REMIC Administrator's execution and delivery of, performance
under and compliance with this Agreement, will not violate the REMIC
Administrator'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.
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(iii) The REMIC Administrator 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 REMIC Administrator, enforceable against the
REMIC Administrator 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 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 REMIC Administrator is not in violation of, and its execution
and delivery of, performance under and compliance with 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 REMIC
Administrator's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the REMIC Administrator to
perform its obligations under this Agreement or the financial condition of
the REMIC Administrator.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the REMIC Administrator of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the REMIC
Administrator's knowledge, threatened against the REMIC Administrator that,
if determined adversely to the REMIC Administrator, would prohibit the
REMIC Administrator from entering into this Agreement or that, in the REMIC
Administrator's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the REMIC Administrator to
perform its obligations under this Agreement or the financial condition of
the REMIC Administrator.
(viii) There is no event, condition or circumstance in existence that
constitutes (or, with notice or lapse of time, or both, would constitute)
an Event of Default on the part of the REMIC Administrator.
(ix) The REMIC Administrator is currently modifying its computer
systems and expects that, by December 31, 1999, it will be "year 2000
ready" such that its operations and its ability to perform its obligations
under this Agreement will not be materially and adversely affected by the
occurrence of calendar year 2000. The REMIC Administrator is also assessing
whether its key vendors and subcontractors will be "year 2000 ready " by
such date.
(b) The representations and warranties of the REMIC Administrator set
forth in Section 2.08(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit
they were made for so long as the Trust remains in existence. Upon
discovery by any 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 hereto.
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(c) Any successor REMIC Administrator shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.08(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.08(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.09. Designation of the Certificates.
(a) The Certificates shall consist of twenty (20) Classes hereby designated
as the "Class S Certificates", the "Class A-1A Certificates", the "Class A-1B
Certificates", the "Class A-2 Certificates", the "Class A-3 Certificates", the
"Class A-4 Certificates", the "Class B-1 Certificates", the "Class B-2
Certificates", the "Class B-3 Certificates", the "Class B-4 Certificates", the
"Class B-5 Certificates", the "Class B-6 Certificates", the "Class B-7
Certificates, the "Class B-8 Certificates", the "Class C Certificates", the
"Class D-1 Certificates", the "Class D-2 Certificates", the "Class R-I
Certificates", the "Class R-II Certificates" and the "Class R-III Certificates",
respectively.
(b) The Class A-1A, Class A-1B, Class A-2, Class A-3 and Class A-4
Certificates are collectively designated as the "Class A Certificates".
(c) The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7 and Class B-8 Certificates are collectively designated as the "Class B
Certificates".
(d) The Class S, Class A-1A and Class A-1B Certificates are collectively
designated as the "Senior Certificates".
(e) The Class A-2, Class A-3, Class A-4, Class B, Class C, Class R-I, Class
R-II and Class R-III Certificates are collectively designated as the
"Subordinated Certificates".
(f) The Class A, Class B and Class C Certificates are collectively
designated as the "Principal Balance Certificates".
(g) The Class D-1 and Class D-2 Certificates are collectively designated as
the "Grantor Trust Certificates".
(h) The Class S Certificates are also designated as the "Interest Only
Certificates".
(i) The Interest Only Certificates and the Principal Balance Certificates
are collectively designated as the "Regular Interest Certificates".
(j) The Class R-I, Class R-II and Class R-III Certificates are collectively
designated as the "Residual Interest Certificates".
(k) The Regular Interest Certificates and the Class R-III Certificates are
collectively designated as the "REMIC III Certificates".
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SECTION 2.10. Creation of REMIC I; Issuance of REMIC I Regular Interests
and Class R-I Certificates.
(a) It is the intention of the parties hereto that the following segregated
pool of assets constitute a REMIC for federal income tax purposes and, further,
that such segregated pool of assets be designated as "REMIC I": (i) the Mortgage
Loans that are from time to time subject to this Agreement and all payments
under and proceeds of such Mortgage Loans received after the Closing Date or, in
the case of a Replacement Mortgage Loan, after the related date of substitution
(other than scheduled payments of interest and principal due on or before the
Cut-off Date or, in the case of a Replacement Mortgage Loan, on or before the
related date of substitution and other than Additional Interest collected in
respect of the ARD Loans after their respective Anticipated Repayment Dates),
together with all documents included in the related Mortgage Files and Servicing
Files and any related Additional Collateral; (ii) any REO Property acquired in
respect of any such Mortgage Loan; (iii) such funds and assets as from time to
time are deposited in the Collection Account, the Distribution Account, the
Interest Reserve Account and, if established, the REO Account (exclusive of any
amounts that constitute Additional Interest collected in respect of the ARD
Loans after their respective Anticipated Repayment Dates); (iv) the rights of
the Depositor under Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent
related to the foregoing, under Sections 9, 10, 13, 14, 15, 16, 17 and 19) of
each Mortgage Loan Purchase and Sale Agreement; (v) the rights of the Trustee
and the Certificateholders as third party beneficiaries under each Mortgage Loan
Purchase and Sale Agreement (as and to the extent provided under Section 11
thereof); and (vi) the rights of the Depositor under the Union Capital Agreement
(insofar as such rights were assigned thereto under the Mortgage Loan Purchase
and Sale Agreement). The Closing Date is hereby designated as the "Startup Day"
of REMIC I within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the Original Mortgage Loans and
certain related assets to the Trustee pursuant to Section 2.01(b) and in
exchange therefor, the REMIC I Regular Interests shall be issued, and the
Trustee, pursuant to the written request of the Depositor executed by an officer
of the Depositor, shall execute, authenticate and deliver to or upon the order
of the Depositor, the Class R-I Certificates in authorized denominations. A
separate REMIC I Regular Interest shall be issued with respect to each Original
Mortgage Loan. For purposes of this Agreement, each REMIC I Regular Interest
shall relate to the Original Mortgage Loan in respect of which it was issued, to
each Replacement Mortgage Loan (if any) substituted for such Original Mortgage
Loan, and to each REO Mortgage Loan deemed outstanding with respect to an REO
Property (if any) acquired in respect of such Original Mortgage Loan or any such
Replacement Mortgage Loan. None of the REMIC I Regular Interests shall be
certificated. The interests evidenced by the Class R-I Certificates, together
with the REMIC I Regular Interests, shall constitute the entire beneficial
ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the Class R-I
Certificates shall constitute the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I (within the meaning of Treasury
regulation section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Mortgage Loan set forth in the
Mortgage Loan Schedule.
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(e) Each REMIC I Regular Interest shall have an Uncertificated Principal
Balance. As of the Closing Date, the Uncertificated Principal Balance of each
REMIC I Regular Interest shall equal the Cut-off Date Balance of the related
Original Mortgage Loan (as specified in the Mortgage Loan Schedule). On each
Distribution Date, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by any distributions of principal deemed
made in respect of such REMIC I Regular Interest on such Distribution Date
pursuant to Section 4.01(j) and, further, by any Principal Balance Reduction
made with respect to such REMIC I Regular Interest on such Distribution Date
pursuant to Section 4.04(c). Except as provided in the preceding sentence, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC II in
reimbursement of Unreimbursed Principal Balance Reductions in respect of a REMIC
I Regular Interest, shall not constitute deemed distributions of principal and
shall not result in any reduction of the Uncertificated Principal Balance of
such REMIC I Regular Interest.
(f) Each REMIC I Regular Interest shall have a REMIC I Remittance Rate. The
REMIC I Remittance Rate in respect of any particular REMIC I Regular Interest
for any Interest Accrual Period shall be calculated as follows: (i) if, as of
the Closing Date, the related Original Mortgage Loan bears interest calculated
on a 30/360 Basis, then the REMIC I Remittance Rate in respect of the subject
REMIC I Regular Interest for any Interest Accrual Period shall equal the
Mortgage Rate in effect for the related Original Mortgage Loan as of the Closing
Date, minus five (5) basis points (0.05%); and (ii) if, as of the Closing Date,
the related Original Mortgage Loan bears interest calculated on an Actual/360
Basis, then the REMIC I Remittance Rate in respect of the subject REMIC I
Regular Interest for any Interest Accrual Period shall equal (A) a fraction
(expressed as a percentage), the numerator of which is (subject to adjustment as
provided below) the product of twelve times the aggregate amount of interest
that would accrue during such Interest Accrual Period on the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date if such interest were to be calculated on an
Actual/360 Basis and were to accrue at the Mortgage Rate in effect for the
related Original Mortgage Loan as of the Closing Date, and the denominator of
which is the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date, minus five (5)
basis points (0.05%); provided that, in the case of a REMIC I Regular Interest
that corresponds to an Interest Reserve Loan, if the subject Interest Accrual
Period occurs during January of any year or during December of any year that
does not immediately precede a leap year, the amount of the numerator for the
fraction described in clause (ii)(A) above shall be reduced by the related
Interest Reserve Amount that is to be transferred from the Distribution Account
to the Interest Reserve Account in the following calendar month in accordance
with Section 3.04(c) and, if the subject Interest Accrual Period occurs during
February of any year, the amount of the numerator for the fraction described in
clause (ii)(A) above shall be increased by any related Interest Reserve
Amount(s) to be transferred from the Interest Reserve Account to the
Distribution Account pursuant to Section 3.05(c) for distribution on the
Distribution Date in March of such year; and provided, further, that, in the
case of a REMIC I Regular Interest that corresponds to a Mortgage Loan with a
Stated Maturity Date that occurs after the Determination Date in the relevant
calendar month, the REMIC I Remittance Rate in respect of such REMIC I Regular
Interest for the Interest Accrual Period in which such Stated Maturity Date
occurs shall equal the product of (s) the REMIC I Remittance Rate that would
otherwise have been in effect for such REMIC I Regular Interest for such
Interest Accrual Period without regard to this proviso, multiplied by (t) a
fraction (expressed as a percentage), the numerator of which shall be the number
of days in such Interest Accrual Period up to but not including such Stated
Maturity Date, and the denominator of which shall be 30.
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(g) Each REMIC I Regular Interest shall bear interest. The Uncertificated
Accrued Interest in respect of each REMIC I Regular Interest shall commence
accruing on the Cut-off Date and, during each Interest Accrual Period, shall
accrue at the applicable REMIC I Remittance Rate on the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to the
related Distribution Date. The Uncertificated Accrued Interest in respect of
each REMIC I Regular Interest shall be calculated on a 30/360 Basis.
Notwithstanding the foregoing, the portion of the Uncertificated Accrued
Interest in respect of any REMIC I Regular Interest for any Interest Accrual
Period that may be deemed distributable to REMIC II with respect to such REMIC I
Regular Interest pursuant to Section 4.01(j) shall not exceed the Uncertificated
Distributable Interest in respect of such REMIC I Regular Interest for the
related Distribution Date.
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the first Distribution Date that follows the Stated Maturity
Date for the related Original Mortgage Loan.
(i) The Class R-I Certificates shall not have principal balances and shall
not bear interest.
SECTION 2.11. Conveyance of REMIC I Regular Interests; Acceptance of REMIC
I Regular Interests by Trustee.
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 Holders of the Class R-II and
REMIC III 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
Class R-II and REMIC III Certificates.
SECTION 2.12. Creation of REMIC II; Issuance of REMIC II Regular Interests
and Class R-II Certificates.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests to
the Trustee pursuant to Section 2.11 and in exchange therefor, the REMIC II
Regular Interests shall be issued, and the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Depositor, shall execute,
authenticate and deliver to or upon the order of the Depositor, the Class R-II
Certificates in authorized denominations. There shall be fourteen (14) separate
REMIC II Regular Interests, and none of the REMIC II Regular Interests shall be
certificated. The interests evidenced by the Class R-II Certificates, together
with the REMIC II Regular Interests, shall constitute the entire beneficial
ownership of REMIC II.
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(c) The REMIC II Regular Interests shall constitute the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the Class R-II
Certificates shall constitute the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests are hereby designated as "REMIC II
Regular Interest A-1A", "REMIC II Regular Interest A-1B", "REMIC II Regular
Interest A-2", "REMIC II Regular Interest A-3", "REMIC II Regular Interest A-4",
"REMIC II Regular Interest B-1", "REMIC II Regular Interest B- 2", "REMIC II
Regular Interest B-3", "REMIC II Regular Interest B-4", "REMIC II Regular
Interest B-5", "REMIC II Regular Interest B-6", "REMIC II Regular Interest B-7",
"REMIC II Regular Interest B-8" and "REMIC II Regular Interest C", respectively.
(e) Each REMIC II Regular Interest shall have an Uncertificated Principal
Balance. The following table sets forth for each REMIC II Regular Interest the
initial Uncertificated Principal Balance thereof and the calendar month in which
the Latest Possible Maturity Date thereof occurs (calculated based on the
Maturity Assumptions):
Designation of Initial Uncertificated Latest Possible
REMIC II Regular Interest Principal Balance Maturity Date(1)
------------------------- ----------------- ----------------
A-1A $ 218,788,000 August 2008
A-1B $ 686,205,000 January 2009
A-2 $ 58,887,000 February 2009
A-3 $ 65,085,000 February 2009
A-4 $ 18,596,000 February 2009
B-1 $ 46,489,000 February 2009
B-2 $ 15,497,000 February 2009
B-3 $ 37,191,000 February 2009
B-4 $ 21,695,000 March 2009
B-5 $ 9,298,000 March 2009
B-6 $ 12,397,000 March 2009
B-7 $ 12,398,000 April 2013
B-8 $ 12,397,000 November 2015
C $ 24,794,562 April 2023
- ------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II
Regular Interest will be the Distribution Date in the calendar month
specified in the foregoing table with respect to such REMIC II Regular
Interest.
On each Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be permanently reduced by any distributions of
principal deemed made in respect of such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01(i) and, further, by any Principal
Balance Reduction made with respect to such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.04(b). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall not otherwise be increased or decreased. Deemed
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distributions to REMIC III in reimbursement of Unreimbursed Principal Balance
Reductions in respect of a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II Remittance Rate
that, with respect to any Interest Accrual Period, shall equal the weighted
average, expressed as a percentage and rounded to eight decimal places, of the
respective REMIC I Remittance Rates in effect for all the REMIC I Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest. The Uncertificated
Accrued Interest in respect of each REMIC II Regular Interest shall commence
accruing on the Cut-off Date and, during each Interest Accrual Period, shall
accrue at the applicable REMIC II Remittance Rate on the Uncertificated
Principal Balance of such REMIC II Regular Interest outstanding immediately
prior to the related Distribution Date. The Uncertificated Accrued Interest in
respect of each REMIC II Regular Interest shall be calculated on a 30/360 Basis.
Notwithstanding the foregoing, the portion of the Uncertificated Accrued
Interest in respect of any REMIC II Regular Interest for any Interest Accrual
Period that may be deemed distributable to REMIC III with respect to such REMIC
II Regular Interest pursuant to Section 4.01(i) shall not exceed the
Uncertificated Distributable Interest in respect of such REMIC II Regular
Interest for the related Distribution Date.
(h) The Class R-II Certificates shall not have principal balances and shall
not bear interest.
SECTION 2.13. Conveyance of REMIC II Regular Interests; Acceptance of REMIC
II Regular Interests by Trustee.
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 II Regular
Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
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 III
Certificates.
SECTION 2.14. Creation of REMIC III; Issuance of REMIC III Certificates.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests to
the Trustee pursuant to Section 2.13 and in exchange therefor, the Trustee shall
execute, authenticate and deliver to or upon the order of the Depositor, the
REMIC III Certificates in authorized denominations evidencing the entire
beneficial ownership of REMIC III. The Class S Certificates shall actually
represent twelve (12) separate beneficial ownership interests in REMIC III.
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(c) The respective Classes of the Principal Balance Certificates, together
with the Class S REMIC III Regular Interests represented by the Class S
Certificates, shall constitute the "regular interests" (within the meaning of
Section 860G(a)(1) of the Code), and the Class R-III Certificates shall
constitute the sole class of "residual interests" (within the meaning of Section
860(G)(a)(2) of the Code), in REMIC III. None of the parties hereto, to the
extent it is within the control thereof, shall create or permit the creation of
any other "interests" in REMIC III (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
(d) The Class S REMIC III Regular Interests are hereby designated as "REMIC
III Regular Interest S-A-1A", "REMIC III Regular Interest S-A-1B", "REMIC III
Regular Interest S-A-2", "REMIC III Regular Interest S-A-3", "REMIC III Regular
Interest S-A-4", "REMIC III Regular Interest S- B-3", "REMIC III Regular
Interest S-B-4", "REMIC III Regular Interest S-B-5", "REMIC III Regular Interest
S-B-6", "REMIC III Regular Interest S-B-7", "REMIC III Regular Interest S-B-8"
and "REMIC III Regular Interest S-C", respectively.
The Class S REMIC III Regular Interests (and, accordingly, the Class S
Certificates) shall not have principal balances. For purposes of accruing
interest, however, each Class S REMIC III Regular Interest shall have a
Component Notional Amount equal to the Uncertificated Principal Balance of such
Class S REMIC III Regular Interest's Corresponding REMIC II Regular Interest
outstanding from time to time. Notwithstanding the foregoing, however, for
reporting purposes, the Class S Certificates shall be deemed to have a Class
Notional Amount that is, as of any date of determination, equal to the aggregate
of the then Uncertificated Principal Balances of all the REMIC II Regular
Interests.
Each Class S REMIC III Regular Interest shall have a Class S Strip Rate
that, with respect to any Interest Accrual Period, shall equal the excess, if
any, of (i) the REMIC II Remittance Rate for such Interest Accrual Period in
respect of such Class S REMIC III Regular Interest's Corresponding REMIC II
Regular Interest, over (ii) the Pass-Through Rate for such Interest Accrual
Period in respect of the Class of Principal Balance Certificates with the same
Corresponding REMIC II Regular Interest. Notwithstanding the foregoing, however,
for reporting purposes, the Class S Certificates shall be deemed to have a Pass-
Through Rate that, with respect to any Interest Accrual Period, is equal to the
quotient, expressed as a percentage and rounded to eight decimal places,
obtained by dividing (i) 12 times the aggregate amount of Accrued Component
Interest in respect of all the Class S REMIC III Regular Interests for such
Interest Accrual Period, by (ii) the aggregate of the Uncertificated Principal
Balances of all the REMIC II Regular Interests outstanding immediately prior to
the related Distribution Date.
Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class S REMIC
III Regular Interest shall be the same as the "latest possible maturity date"
for such Class S REMIC III Regular Interest's Corresponding REMIC II Regular
Interest.
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance and a Pass-Through Rate.
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The following table sets forth for each Class of Principal Balance
Certificates the initial Class Principal Balance thereof, the Pass-Through Rate
thereof for the initial Interest Accrual Period and the calendar month in which
the Latest Possible Maturity Date thereof occurs (calculated based on the
Maturity Assumptions):
Class Initial Class Initial Latest Possible
Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------- ----------------- ----------------- ----------------
Class A-1A $ 218,788,000 6.0800% August 2008
Class A-1B $ 686,205,000 6.4600% January 2009
Class A-2 $ 58,887,000 6.6000% February 2009
Class A-3 $ 65,085,000 6.7700% February 2009
Class A-4 $ 18,596,000 6.9200% February 2009
Class B-1 $ 46,489,000 7.4866% February 2009
Class B-2 $ 15,497,000 7.4866% February 2009
Class B-3 $ 37,191,000 5.7500% February 2009
Class B-4 $ 21,695,000 5.7500% March 2009
Class B-5 $ 9,298,000 5.7500% March 2009
Class B-6 $ 12,397,000 5.5300% March 2009
Class B-7 $ 12,398,000 5.5300% April 2013
Class B-8 $ 12,397,000 5.5300% November 2015
Class C $ 24,794,562 5.5300% April 2023
- -------------------
(1) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
Principal Balance Certificates will be the Distribution Date in the
calendar month specified in the foregoing table with respect to such Class
of Principal Balance Certificates.
The respective Pass-Through Rates applicable to the Class A-1A, Class A-1B,
Class A-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8 and
Class C Certificates shall, in the case of each such Class of Certificates, for
each Interest Accrual Period subsequent to the initial Interest Accrual Period,
remain fixed at the initial Pass-Through Rate set forth in the table above with
respect to such Class of Certificates. The Pass-Through Rates applicable to the
Class A-3 and Class A-4 Certificates are subject to change and, in the case of
each such Class, for each Interest Accrual Period subsequent to the initial
Interest Accrual Period, shall equal the lesser of (i) the initial Pass-Through
Rate set forth in the table above with respect to such Class of Certificates and
(ii) the REMIC II Remittance Rate in effect during such Interest Accrual Period
in respect of the Corresponding REMIC II Regular Interest for such Class of
Certificates. The Pass-Through Rates applicable to the Class B-1 and Class B-2
Certificates are variable and, in the case of each such Class, for each Interest
Accrual Period subsequent to the initial Interest Accrual Period, shall equal
the REMIC II Remittance Rate in effect during such Interest Accrual Period in
respect of the Corresponding REMIC II Regular Interest for such Class of
Certificates.
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by any distributions
of principal made in respect of such Class of Certificates on such Distribution
Date pursuant to Section 4.01(a) and, further, by any Principal Balance
Reduction made with respect to such Class of Certificates on such Distribution
Date pursuant to Section 4.04(a). Except as provided in the preceding sentence,
the Class Principal Balance of each Class of Principal
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Balance Certificates shall not otherwise be increased or reduced. Distributions
to the Holders of any such Class of Principal Balance Certificates in
reimbursement of any Unreimbursed Principal Balance Reductions in respect of
such Class of Certificates shall not constitute distributions of principal and
shall not result in any reduction of the related Class Principal Balance.
(f) Each Class S REMIC III Regular Interest shall bear interest. Accrued
Component Interest in respect of the Class S REMIC III Regular Interests shall
commence accruing on the Cut-off Date. With respect to each Class S REMIC III
Regular Interest, the Accrued Component Interest shall accrue during each
Interest Accrual Period at the applicable Class S Strip Rate on the Component
Notional Amount of such Class S REMIC III Regular Interest outstanding
immediately prior to the related Distribution Date. The Accrued Component
Interest in respect of each Class S REMIC III Regular Interest shall be
calculated on a 30/360 Basis. Notwithstanding the foregoing, the portion of the
Accrued Component Interest in respect of any Class S REMIC III Regular Interest
for any Interest Accrual Period that may be distributable to the Holders of the
Class S Certificates pursuant to Section 4.01(a) shall not exceed the
Distributable Component Interest in respect of such Class S REMIC III Regular
Interest for the related Distribution Date.
(g) Each Class of Regular Interest Certificates shall bear interest.
Accrued Certificate Interest in respect of the Regular Interest Certificates
shall commence accruing on the Cut-off Date. With respect to each Class of
Principal Balance Certificates, the Accrued Certificate Interest shall accrue
during each Interest Accrual Period at the applicable Pass-Through Rate on the
Class Principal Balance of such Class of Certificates outstanding immediately
prior to the related Distribution Date. The Accrued Certificate Interest in
respect of each Class of Principal Balance Certificates shall be calculated on a
30/360 Basis. The Accrued Certificate Interest in respect of the Class S
Certificates for any Interest Accrual Period shall consist of the aggregate
Accrued Component Interest in respect of all the Class S REMIC III Regular
Interests for such Interest Accrual Period, calculated in accordance with
Section 2.14(f). Notwithstanding the foregoing, the portion of the Accrued
Certificate Interest in respect of any Class of Regular Interest Certificates
for any Interest Accrual Period that may be distributable to the Holders of such
Class of Certificates pursuant to Section 4.01(a) shall not exceed the
Distributable Certificate Interest in respect of such Class of Certificates for
the related Distribution Date.
(h) The Class R-III Certificates shall not have principal balances and
shall not bear interest.
SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of Class D
Certificates.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of any collections of Additional Interest received on the GECA
Mortgage Loans that are ARD Loans constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust D-1". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust D-1 and
declares that it will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class D-1 Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
D-1, the Trustee shall execute, authenticate and deliver to or upon the order of
the Depositor the Class D-1 Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust D-1. The rights of the Holders
of the Class D-1 Certificates to receive distributions from the proceeds of
Grantor Trust D-1, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
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(b) It is the intention of the parties hereto that the segregated pool of
assets consisting of any collections of Additional Interest received on the
Column Mortgage Loans that are ARD Loans constitute a Grantor Trust for federal
income tax purposes and, further, that such segregated pool of assets be
designated as "Grantor Trust D-2". The Trustee, by its execution and delivery
hereof, acknowledges the assignment to it of the assets of Grantor Trust D-2 and
declares that it will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class D-2 Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
D-2, the Trustee shall execute, authenticate and deliver to or upon the order of
the Depositor the Class D-2 Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust D-2. The rights of the Holders
of the Class D-2 Certificates to receive distributions from the proceeds of
Grantor Trust D-2, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement, for the benefit of the
Certificateholders (as a collective whole), in accordance with any and all
applicable laws and the express terms of this Agreement and the respective
Mortgage Loans and, to the extent consistent with the foregoing, in accordance
with the Servicing Standard. The Master Servicer or Special Servicer, as
applicable in accordance with this Agreement, shall service and administer each
Cross- Collateralized Group as a single Mortgage Loan as and when necessary and
appropriate consistent with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Performing Mortgage Loans, and (ii) the Special Servicer
shall service and administer (x) each Mortgage Loan (other than a Corrected
Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each
REO Property; provided, however, that the Master Servicer shall continue to
collect information and prepare all reports to the Trustee required hereunder
with respect to any Specially Serviced Mortgage Loans and REO Properties (and
the related REO Mortgage Loans) and, further, to render such incidental services
with respect to any Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein. The Master Servicer shall not, on behalf of
the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and other related collateral; and (ii) any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments. In addition, without
limiting the generality of the foregoing, each of the Master Servicer and
Special Servicer is authorized and empowered by the Trustee to execute and
deliver, in accordance with the Servicing Standard and subject to Sections 3.08
and 3.20, any and all assumptions, modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File. Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its 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.
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(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer and the Special Servicer shall each undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder and shall
follow such collection procedures as are consistent with the Servicing Standard;
provided, however, that neither the Master Servicer nor the Special Servicer
shall, with respect to any ARD Loan after its Anticipated Repayment Date, take
any enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Additional Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. Consistent with the foregoing, the Master Servicer
(as to Performing Mortgage Loans) and the Special Servicer (as to Specially
Serviced Mortgage Loans) each may waive any Default Charges in connection with
any specific delinquent payment on a Mortgage Loan it is obligated to service
hereunder.
(b) Ninety (90) days prior to the maturity date of each Balloon Mortgage
Loan, the Master Servicer shall send a notice to the related Borrower of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), in which all Escrow Payments received by it with
respect to the Mortgage Loans shall be deposited and retained. Subject to any
terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and comparable items in respect of the
related Mortgaged Property; (ii) to reimburse the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby to cover any of the items described in the
immediately preceding clause (i); (iii) to refund to the related Borrower any
sums as may be determined to be overages; (iv) to pay interest or other income,
if required and as described below, to the related Borrower on balances in the
Servicing Account (or, if and to the extent not payable to the related Borrower
to pay such interest or other income (up to the amount of any Net Investment
Earnings in respect of such Servicing Account for each Collection Period) to the
Master Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. The Master
Servicer shall pay or cause to be paid to the Borrowers interest and other
income, if any, earned on the investment of funds in Servicing Accounts
maintained thereby, if and to the extent required by law or the
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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. Promptly after any Escrow Payments are received by
the Special Servicer from any Borrower, and in any event within two Business
Days after any such receipt, the Special Servicer shall remit such Escrow
Payments to the Master Servicer for deposit in the applicable Servicing
Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including each
Specially Serviced Mortgage Loan) (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 consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan documents; provided, however, that if such Mortgage Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Borrower make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, the Master Servicer shall
advance with respect to each Mortgaged Property (including each Mortgaged
Property relating to a Specially Serviced Mortgage Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies (excluding title insurance policies),
in each instance prior to the applicable penalty or termination date if and to
the extent that (x) Escrow Payments (if any) collected from the related Borrower
are insufficient to pay such item when due, (y) the Master Servicer determines
in accordance with the Servicing Standard that the related Borrower has failed
to pay such item on a timely basis and (z) the particular Advance would not, if
made, constitute a Nonrecoverable Servicing Advance; provided that with respect
to any Mortgage Loan under which the related Borrower is not required to make
Escrow Payments for real estate taxes, the Master Servicer shall be required to
advance such real estate taxes only upon its determination, using efforts
consistent with the Servicing Standard, that such real estate taxes have not
been paid). All such Advances shall be reimbursable in the first instance from
related collections from the Borrowers 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 hereof, including calculating
monthly distributions to Certificateholders, be added to the respective unpaid
principal balances or Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit; provided,
however, that this sentence shall not be construed to limit the rights of the
Master Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan.
(d) The Master Servicer shall establish and maintain, as applicable, one or
more accounts (the "Reserve Accounts"), in which all Reserve Funds, if any,
shall be deposited and retained. As and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, withdrawals of
amounts so deposited, and draws under any Letter of Credit delivered in lieu of
Reserve Funds, may be made to pay for, or to reimburse the related Borrower in
connection with, the costs associated with the related
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tenant improvements, leasing commissions, repairs, replacements, capital
improvements and/or environmental testing and remediation at or with respect to
the related Mortgaged Property for which such Reserve Funds were intended or
such Letter of Credit was delivered. In addition, as and to the extent
consistent with the Servicing Standard and the related Mortgage Loan documents,
withdrawals of amounts so deposited, and draws under any Letter of Credit so
delivered, may be made to prepay the Mortgage Loan in the event certain leasing
or other economic criteria are not satisfied at the related Mortgaged Property,
or to release such amounts to the related Borrower or otherwise apply such
amounts for any other appropriate purpose in the event that such criteria are
satisfied. Subject to the terms of the related Mortgage Loan documents, each
Reserve Account shall be an Eligible Account. Interest and other income, if any,
earned on funds on deposit in any Reserve Account (to the extent of any Net
Investment Earnings with respect to such Reserve Account for any Collection
Period), shall be for the benefit of and payable to the Master Servicer, unless
otherwise required to be paid to the related Borrower by law or the terms of the
related Mortgage Loan. Any out-of-pocket expenses incurred by the Master
Servicer to enable the Master Servicer to make any draw under any Letter of
Credit shall constitute a Servicing Advance, and the Master Servicer shall make
reasonable efforts to recover such expenses from the related Borrower to the
extent the Borrower is required to pay such expenses under the terms of the
related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Borrower written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any action
or remediations are required to have been taken or completed pursuant to the
terms of the related Mortgage Loan documents, the Master Servicer shall request
from the Borrower written confirmation of such action and remediations within a
reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to have been taken or completed. To the
extent that a Borrower shall fail to promptly respond to any inquiry described
in this Section 3.03(e), the Master Servicer shall notify the Trustee, the
Special Servicer and the Controlling Class Representative. The Master Servicer
shall promptly notify the Trustee, the Special Servicer and the Controlling
Class Representative if the Master Servicer shall determine that any Borrower
has failed to perform its obligations under the related Mortgage Loan in respect
of environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage Loan
documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
SECTION 3.04. Collection Account, Distribution Account and Interest Reserve
Account.
(a) The Master Servicer shall establish and maintain one or more segregated
accounts (collectively, the "Collection Account"), in which the funds described
below are to be deposited and held on behalf of the Trustee in trust for the
benefit of the Certificateholders. Each account that constitutes the Collection
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Collection Account, within one (1) Business Day of
receipt (in the case of payments by Borrowers or other collections on the
Mortgage Loans) or as otherwise required hereunder, the following payments and
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collections received or made by or on behalf of the Master Servicer in respect
of the Mortgage Pool subsequent to the Closing Date (other than in respect of
scheduled payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, on or before the related date of substitution), which payments shall be
delivered promptly to the related Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
including Default Interest and Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of the Mortgage Loans;
(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 Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master force place
hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made.
The foregoing requirements for deposit in the Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, extension fees, modification fees, charges for beneficiary
statements or demands and amounts collected for checks returned for insufficient
funds, need not be deposited by the Master Servicer in the Collection Account.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation. If the Master Servicer shall deposit
in the Collection Account any amount not required to be deposited therein, it
may at any time withdraw such amount from the Collection Account, any provision
herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through (iv)
and (viii) of the first paragraph of this Section 3.04(a) with respect to any
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
one Business Day after receipt, remit such amounts to the Master Servicer for
deposit into the Collection Account in accordance with the second preceding
paragraph, unless the Special
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Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. 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
(in its capacity as such for the Trust), without recourse, representation or
warranty, 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. 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
Collection Account pursuant to Section 3.16(c).
(b) The Trustee shall establish and maintain one or more segregated
accounts (collectively, the "Distribution Account"), to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Trustee shall establish
and maintain three sub-accounts of the Distribution Account (i) one of which
sub-accounts (such sub-account, the "REMIC Sub-Account") shall be deemed to be
held in trust for the benefit of the Holders of the Regular Interest
Certificates and the Residual Interest Certificates, (ii) one of which
sub-accounts (such sub-account, the "Class D-1 Sub-Account") shall be deemed to
be held in trust for the benefit of the Holders of the Class D-1 Certificates
and (iii) one of which sub-accounts (such sub-account, the "Class D-2
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the Class D-2 Certificates. By 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, the Master Servicer shall deliver to the Trustee, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount for such Master
Servicer Remittance Date. Immediately upon deposit of the Master Servicer
Remittance Amount for any Master Servicer Remittance Date into the Distribution
Account, any portion thereof that represents any Additional Interest related to
the GECA Mortgage Loans shall be deemed to have been deposited into the Class
D-1 Sub-Account, any portion thereof that represents any Additional Interest
related to the Column Mortgage Loans shall be deemed to have been deposited into
the Class D-2 Sub-Account and the remaining portion thereof shall be deemed to
have been deposited into the REMIC Sub-Account. In addition, the Master Servicer
shall, as and when required hereunder, deliver to the Trustee for deposit in the
Distribution Account any P&I Advances and Compensating Interest Payments
required to be made by the Master Servicer hereunder. Furthermore, any amounts
paid by any party hereto to indemnify the Trust Fund pursuant to any provision
hereof shall be delivered to the Trustee for deposit in the Distribution
Account. The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or, pursuant to Section 4.03, advanced by the
Trustee or any Fiscal Agent that are required by the terms of this Agreement to
be deposited therein. As and when required pursuant to Section 3.05(c), the
Trustee shall transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans from the Interest Reserve Account to the Distribution Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2000, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date.
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(d) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account and the Interest Reserve Account shall remain uninvested.
The Master Servicer shall give notice to the other parties hereto of the
location of the Collection Account as of the Closing Date and of the new
location of the Collection Account prior to any change thereof. The Distribution
Account and Interest Reserve Account shall each be established at the Corporate
Trust Office of the Trustee as of the Closing Date, and the Trustee shall give
notice to the other parties hereto of the new location of each of the
Distribution Account and Interest Reserve Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account, the
Distribution Account and the Interest Reserve Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for each Master Servicer Remittance
Date and any amounts that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for unreimbursed P&I Advances made thereby (in each case, with
its own funds), the Master Servicer's, the Trustee's and any Fiscal
Agent's, as the case may be, respective rights to reimbursement pursuant to
this clause (ii) with respect to any P&I Advance (other than Nonrecoverable
P&I Advances, which are reimbursable pursuant to clause (vii) below) being
limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance was made (net of related Master
Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Mortgage Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any Mortgage
Loan or REO Mortgage 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 Mortgage Loan (whether in the
form of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that are
allocable as interest thereon;
(iv) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, earned and unpaid Special Servicing
Fees in respect of each Specially Serviced Mortgage Loan and REO Mortgage
Loan;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is
entitled pursuant to, and from the sources contemplated by, the second and
third paragraphs of Section 3.11(c);
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(vi) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds), the Master Servicer's, the
Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may
be, respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances, which are reimbursable pursuant to clause (vii) below) being
limited to (A) payments made by the related Borrower that are allocable to
cover the item in respect of which such Servicing Advance was made, and (B)
Liquidation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO Property as to
which such Servicing Advance was made;
(vii) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, for any unreimbursed Advances made thereby
that have been determined to be Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer, the Trustee or any Fiscal
Agent, as applicable, any Advance Interest due and owing thereto, the
Master Servicer's, the Special Servicer's, the Trustee's or any Fiscal
Agent's, as the case may be, respective rights to payment pursuant to this
clause (viii) being limited to Default Charges collected in respect of the
Mortgage Loan or REO Mortgage Loan as to which the related Advances were
made thereby;
(ix) to the extent that the Master Servicer has reimbursed or is
reimbursing itself, the Special Servicer, the Trustee or any Fiscal Agent,
as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi)
or (vii) above or pursuant to Section 3.03(c), and insofar as payment has
not already been made, and the related Default Charges then on deposit in
the Collection Account are not sufficient to make such payment, pursuant to
clause (viii) above, to pay itself, the Special Servicer, the Trustee or
such Fiscal Agent, as the case may be, out of general collections on the
Mortgage Loans and any REO Properties, any related Advance Interest accrued
and payable on the portion of such Advance so reimbursed or being
reimbursed;
(x) to reimburse the Trustee for the reasonable out-of-pocket expenses
of providing notices pursuant to the third paragraph of Section 3.24(a);
(xi) to pay itself any items of Additional Master Servicing
Compensation on deposit in the Collection Account from time to time;
(xii) to pay to the Special Servicer any items of Additional Special
Servicing Compensation on deposit in the Collection Account from time to
time;
(xiii) to pay any unpaid Liquidation Expenses incurred with respect to
any Mortgage Loan or REO Property, such payments to be made solely from
Liquidation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of such Mortgage Loan or REO Property, as the case may
be;
(xiv) to pay, in accordance with Section 3.11(i), certain servicing
expenses that would, if advanced, constitute Nonrecoverable Servicing
Advances;
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(xv) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance);
(xvi) to pay itself, the Special Servicer, the REMIC Administrator,
the Depositor, the Trustee, any Fiscal Agent, or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties, any amounts payable to any such Person pursuant to Section
6.03, Section 7.01(b), Section 8.05(b) and/or Section 8.13, as applicable;
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the cost of the Opinion of Counsel contemplated
by Section 11.02(a), (B) the cost of recording this Agreement in accordance
with Section 11.02(a), (C) any expense (including the reasonable fees of
tax accountants and attorneys) incurred by the REMIC Administrator pursuant
to Section 3.17(a)(iii) in connection with providing advice to the Special
Servicer, and (D) any expense incurred by the Trustee pursuant to Section
3.23(b) in connection with obtaining information from the Depository or
Depository Participants regarding any Book-Entry Certificate;
(xviii)to pay to the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the REMIC Administrator or the Depositor, as the
case may be, any amount specifically required to be paid to such Person at
the expense of the Trust Fund under any provision of this Agreement to
which reference is not made in any other clause of this Section 3.05(a), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay itself, the Special Servicer, GECA, Column, Union
Capital, the Majority Controlling Class Certificateholder or any other
particular 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; and
(xx) to clear and terminate the Collection Account at the termination
of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular time
(after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xix)
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (y) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (z) if the payment, reimbursement or remittance can be made from any funds
on deposit in the Collection Account, then (following any withdrawals made from
the Collection Account in accordance with the immediately preceding clause (y)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of the
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Collection Account pursuant to any of clauses (ii), (vi) and (vii) above, and
any payments of interest thereon out of the Collection Account pursuant to
either of clauses (viii) and (ix) above, shall be made (to the extent of their
respective entitlements to such reimbursements and/or payments): first, to any
Fiscal Agent; second, to the Trustee; and third, pro rata, to the Master
Servicer and Special Servicer.
The Master Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Collection Account pursuant to any of clauses (ii)
through (xix) above.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Collection
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or any such third party contractor) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate 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 Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay itself (whether in its capacity as Trustee or, for so long
as it acts as such, REMIC Administrator) or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05, including the
Trustee's Fee;
(iii) to pay any Fiscal Agent or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Sections 8.05(b) and 8.13(a);
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Trustee which amendment is
in furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(vi) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c); and
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(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2000), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as of the Final Distribution Date,
the Trustee shall withdraw from the Interest Reserve Account and deposit in the
Distribution Account all Interest Reserve Amounts in respect of the Interest
Reserve Loans then on deposit in the Interest Reserve Account.
(d) The Trustee, any Fiscal Agent, the Depositor, the Master Servicer and
the Special Servicer shall in all cases have a right prior to the
Certificateholders to any particular funds on deposit in the Collection Account
and the Distribution Account from time to time for the reimbursement or payment
of compensation, Advances (with interest thereon at the Reimbursement Rate) and
their respective expenses hereunder (or, in the case of such expenses, to have
such funds paid directly to third party contractors from any invoices approved
by the Trustee, any Fiscal Agent, the Depositor, the Master Servicer or the
Special Servicer, as applicable), but only if and to the extent such
compensation, Advances (with interest) and expenses are to be reimbursed or paid
from such particular funds on deposit in the Collection Account or the
Distribution Account pursuant to the express terms of this Agreement.
SECTION 3.06. Investment of Funds in the Collection Account, Interest
Reserve Account, Servicing Accounts, Reserve Accounts and
the REO Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution (including the Trustee) maintaining the
Collection Account or any Servicing Account or Reserve Account, and the Special
Servicer may direct (pursuant to a standing order or otherwise) any depository
institution maintaining the REO Account, to invest, or if it is such depository
institution, may itself invest, the funds held therein (each such account, for
purposes of this Section 3.06, an "Investment Account") in (but 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 or the related Mortgage Loan documents,
as applicable; provided that any such investment of funds in any Servicing
Account or Reserve Account shall be subject to applicable law and the terms of
the related Mortgage Loan documents; and provided, further, that the funds in
any Investment Account shall remain uninvested unless and until the Master
Servicer gives timely investment instructions with respect thereto pursuant to
this Section 3.06. 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 Collection
Account, the Servicing Accounts and the Reserve Accounts) and the Special
Servicer (with respect to Permitted Investments of amounts in the REO Account),
acting on behalf of the Trustee, shall (and Trustee hereby designates the Master
Servicer and the Special Servicer, as applicable, as the Person that shall) (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf
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of, the Trustee for purposes of Revised Article 8 (1994 Revision) of the UCC. If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Collection Account or any Servicing Account or Reserve Account) 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 at least 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
the Collection Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Master Servicer directs
the investment of funds in any Servicing Account or Reserve Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Master Servicer and
shall be subject to withdrawal from time to time in accordance with Section
3.03, but only if and to the extent not required to be paid to the related
Borrower pursuant to applicable law or the terms of the related Mortgage Loan.
Whether or not the Special Servicer directs the investment of funds in the REO
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for such Investment Account
for each Collection Period, shall be for the sole and exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in accordance with
Section 3.16(b). If any loss shall be incurred in respect of any Permitted
Investment on deposit in any Investment Account (other than a loss of what would
otherwise have constituted investment earnings), the Master Servicer (in the
case of the Collection Account and any Servicing Account or Reserve Account) 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, in respect of such Investment Account for such
Collection Period (or, in the case of a Servicing Account or Reserve Account,
the entire amount of such loss).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment, and if the Master Servicer (if such
default is in respect of a Permitted Investment of funds in the Collection
Account or in any Reserve Account or Servicing Account) or the Special Servicer
(if such default is in respect of a Permitted Investment of funds in the REO
Account), as applicable, is in default of its obligations under 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 of Regular Interest Certificates, the Trustee shall, take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate legal proceedings. Any costs incurred
by the Trustee in taking any such action shall be reimbursed to it by the Master
Servicer if the default is in
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respect of a Permitted Investment of funds in the Collection Account or in any
Reserve Account or Servicing Account or by the Special Servicer if the default
is in respect of a Permitted Investment of funds in the REO Account. This
provision is in no way intended to limit any actions that the Master Servicer or
Special Servicer may take in this regard at its own expense.
(d) Amounts on deposit in the Distribution Account and the Interest Reserve
Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any Investment Account,
for purposes of the calculations hereunder, including the calculation of the
Available Distribution Amount and the Master Servicer Remittance 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.
(a) The Master Servicer shall cause to be maintained for each Mortgaged
Property (including each Mortgaged Property relating to any Specially Serviced
Mortgage Loan) all insurance coverage as is required under the related Mortgage;
provided that if and to the extent that any such Mortgage permits the holder
thereof any discretion (by way of consent, approval or otherwise) as to the
insurance coverage that the related Borrower is required to maintain, the Master
Servicer shall exercise such discretion in a manner consistent with the
Servicing Standard, with a view towards requiring insurance comparable to that
required under other Mortgage Loans with express provisions governing such
matters; and provided, further, that, if and to the extent that a Mortgage so
permits, the related Borrower shall be required to obtain the required insurance
coverage from Qualified Insurers that, in each case, have a financial strength
or claims-paying rating no lower than two rating categories below the highest
rated Certificates outstanding, and in any event no lower than "Baa2" from
Moody's (if then rated by Moody's; and, if not then rated by Moody's, "A:IX" or
better from A.M. Best) and "A" from Fitch (if then rated by Fitch; and, if not
then rated by Fitch, "A:IX" or better from A.M. Best) (or in such other form and
amount or issued by an insurer with such other financial strength or
claims-paying ability as would not, as confirmed in writing by each Rating
Agency, result in an Adverse Rating Event). Subject to Section 3.17(b), the
Special Servicer shall also cause to be maintained for each REO Property no less
insurance coverage than was previously required of the Borrower under the
related Mortgage and, at a minimum, (i) hazard insurance with a replacement cost
rider, (ii) business interruption or rental loss insurance for at least twelve
(12) months, and (iii) commercial general liability insurance, in each case, in
an amount customary for the type and geographic location of such REO Property
and consistent with the Servicing Standard; provided that all such insurance
shall be obtained from Qualified Insurers that, in each case, shall have a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"Baa2" from Moody's (if then rated by Moody's; and, if not then rated by
Moody's, "A:IX" or better from A.M. Best) and "A" from Fitch (if then rated by
Fitch; and, if not then rated by Fitch, "A:IX" or better from A.M. Best) (or in
such other form and amount or issued by an insurer with such other financial
strength or claims-paying ability as would not, as confirmed in writing by each
Rating Agency, result in an Adverse Rating Event). All such insurance policies
shall contain (if they insure against loss to property) a "standard" mortgagee
clause, with loss payable to the Master Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of Mortgage Loans), or shall name
the Trustee as the insured, with loss payable to the Special Servicer on behalf
of the Trustee (in the case of insurance maintained in respect of REO
Properties), and shall be issued by an insurer authorized under applicable law
to issue such insurance. Any amounts
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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
Borrower, in each case in accordance with the Servicing Standard) shall be
deposited in the Collection 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 calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit; provided, however, that this sentence shall not limit
the rights of the Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force place policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a financial strength or claims-paying rating no lower than "Baa2" from Moody's
and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch,
"A:IX" or better from A.M. Best) or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by each
Rating Agency, result in an Adverse Rating Event, 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 or REO Properties, as applicable. Such 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 an individual policy, promptly deposit into the Collection Account from its
own funds the amount not otherwise payable under the blanket or master force
place policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). 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 or master force
place 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 during which Specially Serviced
Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force
with a Qualified Insurer having a financial strength or claims-paying rating no
lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "Baa2" from Moody's and "A" from
Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M.
Best), a fidelity bond in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans (or in such other
form and amount or issued by an insurer with such other financial strength or
claims-paying ability rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by 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
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coverage afforded thereunder extends to the Master Servicer or the Special
Servicer, as the case may be. Such fidelity bond shall provide that it may not
be cancelled without ten (10) days' prior written notice to the Trustee.
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 during which Specially Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "Baa2" from Moody's and "A" from
Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M.
Best), a policy or policies of insurance covering loss occasioned by the errors
and omissions of its officers, employees and agents in connection with its
servicing obligations hereunder, which policy or policies shall be in such form
and amount as would permit it to be a qualified FNMA seller-servicer of
multifamily mortgage loans (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying rating as would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by 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 that it may not be
cancelled without ten (10) days' prior written notice to the Trustee.
For so long as the long-term debt obligations of the initial Master
Servicer (or its direct or indirect parent) are rated at least "AAA" or the
equivalent by each of the Rating Agencies, the initial Master Servicer may
self-insure with respect to the risks described in this Section 3.07(c).
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (with respect to Mortgage Loans other than Specially
Serviced Mortgage Loans) and the Special Servicer (with respect to Specially
Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record,
shall evaluate any right to transfer and shall enforce the restrictions
contained in any Mortgage on transfers or further encumbrances of the related
Mortgaged Property and on transfers of interests in the related Borrower, unless
the Master Servicer or the Special Servicer, as appropriate, has determined, in
its reasonable, good faith judgment, that waiver of such restrictions would be
in accordance with the Servicing Standard; provided that neither the Master
Servicer nor the Special Servicer shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related
"due-on-encumbrance" clause (or, if it involves any Mortgage Loan that,
individually or together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower
as such Mortgage Loan or have Borrowers that are known to be affiliated with the
Borrower under such Mortgage Loan, represents 5% or more of the then aggregate
principal balance of the Mortgage Pool, under any related "due-on-sale" clause)
until it has received written confirmation from each Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Rated Certificates. After having made any determination to waive the Trust's
rights under a "due-on-sale" or "due-on encumbrance" clause, the Master Servicer
or the Special Servicer, as appropriate, shall deliver to the Trustee and the
other such party an Officer's Certificate setting forth the basis for such
determination. The Master Servicer and the Special Servicer shall each provide
the other with all such information as each may reasonably request in order to
make such determination. Notwithstanding the foregoing, neither the Master
Servicer nor the Special Servicer shall (to the extent that it is within the
control thereof to prohibit
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such event) consent to the transfer of any Mortgaged Property which secures a
Cross-Collateralized Group unless all of the Mortgaged Properties securing such
Cross-Collateralized Group are transferred simultaneously by the respective
Borrower.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d) and 3.24, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral 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 pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any Designated ARD Loan after its Anticipated Repayment Date, take
any enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Additional Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. In connection with the foregoing, in the event of a
default under any Mortgage Loan or Cross-Collateralized Group that is secured by
real properties located in multiple states, and such states include California
or another state with a statute, rule or regulation comparable to California's
"one action rule", then the Special Servicer shall consult Independent counsel
regarding the order and manner in which the Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Special Servicer as a
Servicing Advance. In addition, all costs and expenses incurred in any such
proceedings shall be paid by, and reimbursable to, the Special Servicer as a
Servicing Advance. Nothing contained in this Section 3.09 shall be construed so
as to require the Special Servicer, on behalf of the Trust, 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
taking into account the factors described in Section 3.18(e) and the results of
any appraisal obtained pursuant to the following sentence or otherwise, all such
bids to be made in a manner consistent with the Servicing Standard. If and when
the Special Servicer deems it necessary in accordance with the Servicing
Standard 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, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Special Servicer on behalf of the Trust under
such circumstances, in such manner or pursuant to such terms as would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (unless the portion of such REO
Property that is not treated as "foreclosure property" and that is held by REMIC
I at any given time constitutes not more than a de minimis amount of the assets
of REMIC I within the meaning of Treasury regulation Section 1.860D-1(b)(3)(i)
and (ii)), or (ii) except as permitted by Section 3.17(a), subject the Trust to
the imposition
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of any federal income taxes under the Code. In addition, the Special Servicer
shall not acquire any personal property on behalf of the Trust 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 shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not result in an Adverse REMIC Event with respect to
any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09, neither
the Master Servicer nor the Special Servicer shall, on behalf of the Trust,
obtain title to a Mortgaged Property by foreclosure, 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, good faith judgment of the Special
Servicer, exercised 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, unless:
(i) the Special Servicer has previously determined in accordance with
the Servicing Standard, based on a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental Assessments
and performed during the twelve (12) month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and 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
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, 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 Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such remedial, corrective
and/or other further actions as are necessary to bring the Mortgaged
Property into compliance with applicable environmental laws and regulations
and to appropriately address any of the circumstances and conditions
referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by clause (i)
or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the Master Servicer and the
Controlling Class Representative, specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to
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advance any funds which, if so advanced, would constitute a Nonrecoverable
Servicing Advance. Amounts so advanced shall be subject to reimbursement as
Servicing Advances in accordance with Section 3.05(a). The cost of any remedial,
corrective or other further action contemplated by clause (ii) of the preceding
paragraph shall be payable out of the Collection Account pursuant to Section
3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii) of the
first sentence of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master Servicer
and the Controlling Class Representative monthly in writing as to any actions
taken by the Special Servicer with respect to any Mortgaged Property as to which
neither of the conditions set forth in clauses (i) and (ii) of the first
sentence of Section 3.09(c) has been satisfied, in each case until the earliest
to occur of satisfaction of either of such conditions, release of the lien of
the related Mortgage on such Mortgaged Property and the related Mortgage Loan's
becoming a Corrected Mortgaged Loan.
(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 prepare and file information returns with
respect to the receipt of mortgage interest received in a trade or business from
individuals, reports of foreclosures and abandonments of any Mortgaged Property
and information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P of
the Code and shall deliver to the Trustee and the REMIC Administrator an
Officer's Certificate stating that such reports have been filed. Such
information returns and reports shall be in form and substance sufficient to
meet the reporting requirements imposed by Sections 6050H, 6050J and 6050P of
the Code. The Master Servicer shall promptly provide to the Special Servicer on
a timely basis all information in the Master Servicer's possession to be
included in such reports and information returns.
(h) As soon as the Special Servicer makes a Final Recovery Determination
with respect to any Mortgage Loan or REO Property, it shall promptly notify the
Trustee, the Master Servicer and the Controlling Class Representative. The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee and the Master Servicer no
later than the third Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall promptly so notify
the Trustee and request delivery to it of the related Mortgage File (such notice
and request to be effected by delivering to the Trustee a Request for Release in
the form of Exhibit D-1 attached hereto, which Request for Release shall be
accompanied by the form of any release or discharge
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to be executed by the Trustee 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 Collection Account pursuant to Section 3.04(a)
have been or will be so deposited). Upon receipt of such Request for Release,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer and shall deliver to the Master
Servicer such accompanying release or discharge, duly executed. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection 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), then, 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,
the Trustee shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or the related Custodian, or upon the Special Servicer's
delivery to the Trustee of an Officer's Certificate stating that (i) such
Mortgage Loan was liquidated and all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account pursuant to Section 3.04(a) have been or will be so deposited
or (ii) such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be returned by the Trustee to the Master Servicer or the Special
Servicer, as applicable.
(c) Within five (5) Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower 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,
the Master Servicer or the Special Servicer; provided that the Trustee may
alternatively execute and deliver to the Special Servicer, in the form supplied
to the Trustee by the Special Servicer, a limited power of attorney issued in
favor of the Special Servicer and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee
(however, the Trustee shall not be liable for any misuse of such power of
attorney by the Special Servicer). Together with such pleadings or documents (or
such power of attorney empowering the Special Servicer to execute the same on
behalf of the Trustee), the Special Servicer shall deliver to the Trustee an
Officer's Certificate requesting that such pleadings or documents (or such power
of attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of 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.
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SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest
on and Reimbursement of Servicing Advances; Payment of
Certain Expenses; Obligations of the Trustee and any Fiscal
Agent regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Master Servicing Fee with respect to each Mortgage
Loan (including each Specially Serviced Mortgage Loan) and each REO Mortgage
Loan. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with March 1999) or any applicable portion thereof, the Master
Servicing Fee shall accrue (on a 30/360 Basis) at the Master Servicing Fee Rate
on the same principal amount as interest accrues from time to time during such
calendar month (or portion thereof) on such Mortgage Loan or is deemed to accrue
from time to time during such calendar month (or portion thereof) on such REO
Mortgage Loan, as the case may be. The Master Servicing Fee with respect to any
Mortgage Loan or REO Mortgage Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. Master Servicing Fees earned with respect to any
Mortgage Loan or REO Mortgage Loan shall be payable monthly from payments of
interest on such Mortgage Loan and REO Revenues allocable as interest on such
REO Mortgage Loan, as the case may be. The Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO
Mortgage Loan out of the portion any related Insurance Proceeds or Liquidation
Proceeds allocable as interest on such Mortgage Loan or REO Mortgage Loan, as
the case may be. 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) The Master Servicer shall be entitled to receive the following items as
additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for a period that it
is or was a Performing Mortgage Loan, any Net Default Charges collected on
such Mortgage Loan;
(ii) any and all assumption fees, assumption application fees,
modification fees, extension fees, charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and
other loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(iii) any Prepayment Interest Excesses collected on the Mortgage
Loans; and
(iv) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage).
To the extent that amounts described in clause (ii) of the preceding
paragraph are collected by the Special Servicer with respect to Mortgage Loans
other than Specially Serviced Mortgage Loans, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
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(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive monthly the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As to each
Specially Serviced Mortgage Loan and REO Mortgage Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue (on a 30/360 Basis) at the Special Servicing Fee Rate on the Stated
Principal Balance of such Specially Serviced Mortgage Loan or REO Mortgage Loan,
as the case may be, outstanding immediately following the Distribution Date in
such calendar month. The Special Servicing Fee with respect to any Specially
Serviced Mortgage Loan or REO Mortgage Loan shall cease to accrue as of the date
a Liquidation Event occurs in respect thereof or, in the case of a Specially
Serviced Mortgage Loan, as of the date 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
Collection 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. 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 Default
Interest) and principal received on such Mortgage Loan for so long as it remains
a Corrected Mortgage Loan (net of any portion of such collection payable or
reimbursable to the Master Servicer, the Special Servicer or the Trustee for any
related unpaid or unreimbursed Master Servicing Fees and/or Advances) received
on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The
Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable
if a Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee
would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan. If the Special Servicer is terminated (other than for cause) or
resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of Mortgage Loans that became
Corrected Mortgage Loans during the period that it acted as Special Servicer and
that were still Corrected Mortgage Loans at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff from the related Borrower or any Liquidation Proceeds
or Insurance Proceeds (other than in connection with the purchase of any such
Specially Serviced Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or the Majority Controlling Class Certificateholder pursuant to
Section 3.18 or Section 9.01, or the purchase or replacement thereof by Union
Capital pursuant to the Union Capital Agreement or the purchase or replacement
thereof by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
and Sale Agreement). As to each such Specially Serviced Mortgage Loan or REO
Property, the Liquidation Fee shall be payable out of, and shall be calculated
by application of the Liquidation Fee Rate to, any such full or discounted
payoff, Liquidation Proceeds and/or Insurance Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Additional Interest, Default Interest, a Prepayment Premium or a
Yield Maintenance Charge, and net of any portion of such payment or proceeds
payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee to cover any related unpaid or unreimbursed Master Servicing Fees and/or
Advances). The Liquidation Fee with respect to any such Specially Serviced
Mortgage Loan will not be payable if such Mortgage Loan becomes a Corrected
Mortgage Loan.
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Notwithstanding anything herein to the contrary, no Liquidation Fee will be
payable in connection with the receipt of, or out of, Liquidation Proceeds
collected as a result of the purchase or substitution of any Specially Serviced
Mortgage Loan or REO Property described in the parenthetical to the first
sentence of this paragraph.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive the following items
as additional special servicing compensation (the following items, collectively,
the "Additional Special Servicing Compensation"):
(i) to the extent allocable to any Mortgage Loan for the period that
it is or was a Specially Serviced Mortgage Loan or allocable to any REO
Mortgage Loan, any Net Default Charges collected on such Mortgage Loan or
REO Mortgage Loan;
(ii) any assumption fees, assumption application fees, modification
fees, extension fees, charges for beneficiary statements or demands and
amounts collected for checks returned for insufficient funds that are
actually received on or with respect to Specially Serviced Mortgage Loans
or REO Mortgage Loans; and
(iii) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the extent
of the Net Investment Earnings, if any, with respect to the REO Account for
each Collection Period).
To the extent that amounts described in clause (ii) of the preceding
paragraph are collected by the Master Servicer with respect to Specially
Serviced Mortgage Loans, the Master Servicer shall promptly pay such amounts to
the Special Servicer and shall not be required to deposit such amounts in the
Collection Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall each be required
(subject to Section 3.11(h) below) 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 Sub-
Servicers retained by it and the premiums for any blanket policy or the standby
fee or similar premium for any master force place policy obtained by it insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account, the Servicing
Accounts, the Reserve Accounts or the REO Account, and neither the Master
Servicer nor the Special Servicer shall be entitled to reimbursement for any
such expense incurred by it except as expressly provided in this Agreement. If
the Master Servicer is required to make any Servicing Advance hereunder at the
discretion of the Special Servicer in accordance with Section 3.19 or otherwise,
the Special Servicer shall promptly provide the Master Servicer with such
documentation regarding the subject Servicing Advance as the Master Servicer may
reasonably request.
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(f) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within fifteen (15)
days after such Advance is required to be made, the Trustee shall, if it has
actual knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three (3) Business Days after
such notice, then (subject to Section 3.11(h) below) the Trustee or a Fiscal
Agent appointed thereby shall make such Advance. If any Fiscal Agent makes any
such Servicing Advance, the Trustee shall be deemed not to be in default under
this Agreement for failing to do so.
(g) The Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent shall each be entitled to receive interest at the Reimbursement Rate in
effect from time to time, accrued on the amount of each Servicing Advance made
thereby (with its own funds), and compounded monthly, for so long as such
Servicing Advance is outstanding. Such compound interest shall be payable: (i)
at any time, out of Default Charges collected on or in respect of the particular
Mortgage Loan or REO Property as to which such Servicing Advance relates; and
(ii) to the extent that such Default Charges are insufficient, but only with
respect to that portion of the related Servicing Advance that has been or is
being reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as appropriate, for any Servicing Advance made by any such Person
as soon as practicable after funds available for such purpose are deposited in
the Collection Account.
(h) Notwithstanding anything to the contrary set forth herein, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make any Servicing Advance that it determines in its reasonable,
good faith judgment would constitute a Nonrecoverable Servicing Advance. The
determination by any Person with an obligation hereunder to make Servicing
Advances 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 by such Person in its reasonable, good faith judgment and
shall be evidenced by an Officer's Certificate delivered promptly to the
Depositor and the Trustee (unless it is the Person making such determination),
which shall provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination, accompanied by a copy of an
Appraisal of the related Mortgaged Property or REO Property performed within the
twelve (12) months preceding such determination, and further accompanied by any
other information, including engineers' reports, environmental surveys or
similar reports, that such Person may have obtained and that support such
determination. Notwithstanding the foregoing, the Trustee and any Fiscal Agent
shall be entitled to conclusively rely on any determination of nonrecoverability
that may have been made by the Master Servicer or the Special Servicer with
respect to a particular Servicing Advance, and the Master Servicer and the
Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer and the
Special Servicer.
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(i) Notwithstanding anything to the contrary set forth herein, the Master
Servicer shall (at the direction of the Special Servicer if a Specially Serviced
Mortgage Loan or an REO Property is involved) pay directly out of the Collection
Account any servicing expense that, if paid by the Master Servicer or the
Special Servicer, would constitute a Nonrecoverable Servicing Advance; provided
that the Master Servicer (or the Special Servicer, if a Specially Serviced
Mortgage Loan or an REO Property is involved) has determined in accordance with
the Servicing Standard that making such payment is in the best interests of the
Certificateholders (as a collective whole), as evidenced by an Officer's
Certificates delivered promptly to the Depositor and the Trustee, which shall
provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be delivered promptly to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer.
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 (but in any event not
later than sixty (60) days) after the related Mortgage Loan becomes a Specially
Serviced Mortgage Loan and at least once per calendar year thereafter for so
long as such Mortgage Loan remains a Specially Serviced Mortgage Loan or if such
Mortgaged Property becomes an REO Property; provided that the Special Servicer
shall be entitled to reimbursement of the reasonable and direct out-of-pocket
travel expenses incurred by it in connection therewith as Servicing Advances.
Beginning in 2000, the Master Servicer shall at its expense perform or cause to
be performed an inspection of each Mortgaged Property at least once per calendar
year (or, in the case of each Mortgage Loan with an unpaid principal balance of
under $2,000,000, once every two years), if the Special Servicer has not already
done so during that period pursuant to the preceding sentence. The Master
Servicer and the Special Servicer shall each prepare a written report of each
such inspection performed by it or on its behalf that sets forth in detail the
condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or Special Servicer, as applicable, is aware, (ii) any
change in the condition, occupancy or value of the Mortgaged Property that the
Master Servicer or the Special Servicer, as applicable, in accordance with the
Servicing Standard, considers material, or (iii) any waste committed on the
Mortgaged Property that the Master Servicer or the Special Servicer, as the case
may be, in accordance with the Servicing Standard, considers material. The
Master Servicer and the Special Servicer shall each deliver to the Trustee, the
Depositor and each other a copy (or image in suitable electronic media) of each
such written report prepared by it within sixty (60) days of completion of the
related inspection. The Trustee shall, upon request and to the extent such items
have been delivered to the Trustee by the Master Servicer, deliver to the
Underwriters, the related Mortgage Loan Seller, the Controlling Class
Representative, any Certificateholder or, to the extent the Trustee has in
accordance with Section 5.06(b) confirmed the Ownership Interest in Certificates
held thereby, any Certificate Owner, a copy (or image in suitable electronic
media) of each such written report prepared by the Master Servicer or the
Special Servicer.
(b) The Special Servicer, in the case of any Specially Serviced Mortgage
Loan, and the Master Servicer, in the case of each Performing Mortgage Loan,
shall make reasonable efforts to collect promptly from each related Borrower
quarterly and annual operating statements, budgets and rent rolls of the related
Mortgaged Property, and financial statements of such Borrower, whether or not
delivery of such
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items is required pursuant to the terms of the related Mortgage. In addition,
the Special Servicer shall cause quarterly and annual operating statements,
budgets and rent rolls to be regularly prepared in respect of each REO Property
and shall collect all such items promptly following their preparation. The
Master Servicer and the Special Servicer shall each deliver copies of all of the
foregoing items so collected thereby to the Trustee, the Depositor and each
other, in each case within sixty (60) days of its receipt thereof. The Trustee
shall, upon request, deliver copies of the foregoing items to the Underwriters,
the Controlling Class Representative, the related Mortgage Loan Seller and any
Certificateholder or, to the extent the Trustee has in accordance with Section
5.06(b) confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
written report prepared by the Master Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, as to Performing
Mortgage Loans, and within 20 days after receipt by the Special Servicer, as to
Specially Serviced Mortgage Loans, of any annual operating statements or rent
rolls with respect to any Mortgaged Property or REO Property, the Master
Servicer or the Special Servicer, as applicable, shall, based upon such
operating statements or rent rolls, prepare (or, if previously prepared, update)
the written analysis of operations (the "Operating Statement Analysis Report"),
and the Special Servicer shall remit each Operating Statement Analysis Report
prepared by it, together with the underlying operating statements and rent
rolls, to the Master Servicer in a format reasonably acceptable to the Master
Servicer. All Operating Statement Analysis Reports shall be maintained by the
Master Servicer with respect to each Mortgaged Property and REO Property, and
the Master Servicer shall forward copies thereof (in each case, promptly
following the initial preparation and each material revision thereof) to the
Trustee and the Special Servicer, together with the related operating statements
or rent rolls. The Trustee shall, upon request and to the extent such items have
been delivered to the Trustee by the Master Servicer, deliver to the
Underwriters, the related Mortgage Loan Seller, the Controlling Class
Representative, any Certificateholder or, to the extent the Trustee has in
accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such Operating
Statement Analysis (or update thereof) and the related operating statement or
rent rolls. The Master Servicer shall maintain an Operating Statement Analysis
Report with respect to each Mortgaged Property and REO Property. Each such
Operating Statement Analysis Report shall be substantially in the form of
Exhibit E-8 attached hereto (or, at the discretion of the Master Servicer,
provided that no less information is provided than is set forth in Exhibit E-8,
in a CSSA format).
Within 45 days after receipt by the Master Servicer or 20 days after
receipt by 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, in the case of
the Special Servicer, forward within such 20-day period to the Master Servicer
in an electronic format reasonably acceptable 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).
(c) Not later than 12:00 p.m. (New York City time) on the first Business
Day following each Determination Date, the Special Servicer shall prepare and
deliver or cause to be delivered to the Master Servicer and the Controlling
Class Representative the following reports (or data files relating to reports of
the Master Servicer) with respect to the Specially Serviced Mortgage Loans and
any REO Properties, providing the required information as of such Determination
Date: (i) a CSSA Property File; and (ii) a CSSA Loan Periodic Update File. At or
before 12:00 p.m. (New York City time) on the first Business Day following each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer the following reports with respect to the
Specially Serviced Mortgage Loans
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and any REO Properties, providing the information required of the Special
Servicer in an electronic format reasonably acceptable to the Master Servicer as
of such Determination Date: (i) a Delinquent Loan Status Report; (ii) a
Comparative Financial Status Report; (iii) an Historical Loss Estimate Report;
(iv) an Historical Loan Modification Report; and (v) an REO Status Report.
(d) Not later than 3:30 p.m. (New York City time) on the second Business
Day after each Determination Date, the Master Servicer shall prepare (if and to
the extent necessary) and deliver or cause to be delivered to the Trustee data
files relating to the following reports: (i) to the extent received at the time
required, the most recent Delinquent Loan Status Report, Historical Loss
Estimate Report, Historical Loan Modification Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(c); (ii) the most
recent CSSA Property File, CSSA Loan Periodic Update File and Comparative
Financial Status Report (in each case combining the reports prepared by the
Special Servicer and the Master Servicer); and (iii) a Watch List Report with
information that is current as of such Determination Date.
(e) The Special Servicer shall deliver to the Master Servicer the reports
set forth in Section 3.12(b) and Section 3.12(c), and the Master Servicer shall
deliver to the Trustee the reports set forth in Section 3.12(d), in an
electronic format reasonably acceptable to the Special Servicer, the Master
Servicer and the Trustee. 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 Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received the requisite 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 Section 3.12(d) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Master Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Master Servicer or the Special
Servicer as the case may be, would violate any applicable law or any provision
of a Mortgage Loan document prohibiting disclosure of information with respect
to the Mortgage Loans or Mortgaged Properties or would constitute a waiver of
the attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standard. The Master Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(g) The Depositor shall provide to the Master Servicer and the Trustee the
initial data (as of the Cut-Off Date or the most recent earlier date for which
such data is available) contemplated by the CSSA Loan Set-up File, the CSSA Loan
Periodic Update File and the CSSA Property File.
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SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, the Depositor, the Underwriters, the Controlling Class Representative
and each other, on or before March 15 of each year, beginning in 2000, an
Officer's Certificate (the "Annual Performance Certification") stating, as to
the 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 the qualification, or
challenging the status, of any REMIC Pool as a REMIC or of either Grantor Trust
D-1 or Grantor Trust D-2 as a Grantor Trust from the IRS or any other
governmental agency or body (or, if it has received any such notice, specifying
the details thereof); provided that neither the Master Servicer nor the Special
Servicer shall be required to deliver its Annual Performance Certification until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Report on Form 10-K is not required to be filed in respect
of the Trust for the preceding calendar year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning in 2000, each of the Master
Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters and each other, 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 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, has complied during such previous calendar year
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, USAP requires it to report; provided that neither the
Master Servicer nor the Special Servicer shall be required to cause the delivery
of its Annual Accountants' Report until April 15 in any given year so long as it
has received written confirmation from the Depositor that a Report on Form 10-K
is not required to be filed in respect of the Trust for the preceding calendar
year. In rendering its report such firm may rely, as to matters relating to the
direct servicing of securitized commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably cooperate
with the Depositor in providing any other form of accountants' reports as may be
required by the Commission in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act, and the reasonable additional costs
of providing such other forms of accountants' reports shall be borne by the
Depositor.
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SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to the
Trustee, any Fiscal Agent, the Depositor, the Underwriters, the Mortgage Loan
Sellers, each Rating Agency and the Controlling Class Representative, and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, 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,
the terms of the Mortgage Loan documents or contract entered into prior to the
Closing Date 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 without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it. The Master Servicer and
the Special Servicer shall each be entitled to affix a reasonable disclaimer to
any information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto).
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust, shall sell any
REO Property by the end of the third calendar year following the year in which
the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than sixty (60) days prior to the expiration of such liquidation period, and is
granted an extension of time (an "REO Extension") by the IRS to sell such REO
Property or (ii) obtains for the Trustee and the REMIC Administrator an Opinion
of Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the holding by the Trust of such REO Property subsequent to the end of the
third calendar year following the year in which such acquisition occurred will
not result in an Adverse REMIC Event with respect to any REMIC Pool. Regardless
of whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act in accordance with the Servicing Standard to liquidate such
REO Property on a timely basis. If the Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel, the Special Servicer shall sell
such REO Property within such extended period as is permitted by such REO
Extension or contemplated by such Opinion of Counsel, as the case may be. Any
expense incurred by the Special Servicer in connection with its applying for and
being granted the REO Extension contemplated by clause (i) of the third
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the third preceding sentence, shall be covered by, and be
reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. Each account that constitutes the REO Account shall be
an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, upon receipt, all REO Revenues, Insurance
Proceeds and Liquidation Proceeds received in respect of an REO Property. 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 Special Servicing Compensation,
interest and investment
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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, if any,
with respect to the REO Account for any Collection Period). The Special Servicer
shall give notice to the other parties hereto of the location of the REO Account
when first established and of the new location of the REO Account prior to any
change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within one Business Day following
the end of each Collection Period, the Special Servicer shall withdraw from the
REO Account and deposit into the Collection Account or deliver to the Master
Servicer (which shall deposit such amounts into the Collection Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following twelve (12) month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, 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. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax referred to
herein as an "REO Tax"), such Mortgaged Property may be Directly Operated
by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the judgment of the Special Servicer, exercised in
accordance with the Servicing Standard, it is commercially reasonable) so
lease or otherwise operate such REO Property; or
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(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, 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 good faith 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 Trust's federal income tax
reporting position with respect to the various sources of income that the
Trust would derive under the Proposed Plan. In addition, the REMIC
Administrator shall (to the maximum extent reasonably possible) advise the
Special Servicer of the estimated amount of taxes that the Trust would be
required to pay with respect to each such source of income. After receiving
the information described in the two preceding sentences from the REMIC
Administrator, the Special Servicer shall either (A) implement the Proposed
Plan (after acquiring the respective Mortgaged Property as REO Property) or
(B) manage and operate such property in a manner that would not result in
the imposition of an REO Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be in accordance with the Servicing Standard. Neither
the Special Servicer nor the REMIC Administrator shall be liable to the
Certificateholders, the Trust, the other parties hereto or each other for errors
in judgment made in good faith in the exercise of their discretion while
performing their respective responsibilities under this Section 3.17(a). Nothing
in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage
Loan or REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), result in the receipt by any REMIC Pool of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code or in an Adverse REMIC Event with respect to any REMIC Pool. Except
as contemplated by Section 3.17(a), the Special Servicer shall not enter into
any lease, contract or other agreement that causes the Trust to receive, and
(unless required to do so under any lease, contract or agreement to which the
Special Servicer or the Trust may become a party or successor to a party due to
a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Mortgage Loan) shall not cause
or allow the Trust to receive, any "net income from foreclosure property" that
is subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are consistent with the Servicing Standard
and, consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management, maintenance and disposition of such REO
Property, including:
(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;
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(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes contemplated by the preceding
sentence with respect to such REO Property, the Master Servicer shall, at the
direction of the Special Servicer, advance such amounts as are necessary for
such purposes unless the Master Servicer or the Special Servicer determines, in
its reasonable, good faith judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that the Master Servicer
may in its sole discretion 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) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and management
of such REO Property, including those listed in Section 3.17(b) above, and
(B) remit all related revenues collected (net of its fees and such costs
and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify
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such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or purchase
of, a Mortgage Loan or REO Property only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable, good faith
judgment, that any Defaulted Mortgage Loan will become subject to foreclosure
proceedings and that the sale of such Mortgage Loan under the circumstances
described in this Section 3.18 is in accordance with the Servicing Standard,
then the Special Servicer shall promptly so notify in writing the Trustee and
the Master Servicer, and the Trustee shall, within five (5) days after receipt
of such notice, notify all the Holders of Certificates of the Controlling Class.
The Majority Controlling Class Certificateholder may, at its or their option,
within thirty (30) days after receipt of such notice, purchase any such
Defaulted Mortgage Loan out of the Trust Fund at a cash price equal to the
applicable Purchase Price. The Purchase Price for any Defaulted Mortgage Loan
purchased under this Section 3.18(b) shall be deposited into the Collection
Account, and the Trustee, upon receipt of an Officer's Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the Certificateholder(s) effecting such purchase (or to
its or their designee) 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 such
Certificateholder(s) ownership of such Mortgage Loan. In connection with any
such purchase, the Special Servicer shall deliver the related Servicing File to
the Certificateholder(s) effecting such purchase (or to its or their designee).
(c) If the Majority Controlling Class Certificateholder has not purchased
any Defaulted Mortgage Loan described in the first sentence of Section 3.18(b)
within thirty (30) days of the Holders of the Controlling Class having received
notice in respect thereof pursuant to Section 3.18(b) above, then the Trustee
shall within five (5) days of the end of such 30-day period send notice to the
Master Servicer and the Special Servicer that such Mortgage Loan was not
purchased by such Certificateholder(s), and either the Special Servicer or the
Master Servicer (in that order of priority) may, at its option, within thirty
(30) days after receipt of such notice, purchase (or designate an Affiliate
thereof to purchase) such Mortgage Loan out of the Trust Fund at a cash price
equal to the Purchase Price. The Purchase Price for any such Mortgage Loan
purchased under this Section 3.18(c) shall be deposited into the Collection
Account, and the Trustee, upon receipt of an Officer's Certificate from the
Master Servicer to the effect that such deposit has been made, shall release or
cause to be released to the Master Servicer or the Special Servicer (or the
designated Affiliate thereof), as applicable, the related Mortgage File, and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the Master Servicer or the Special Servicer (or the designated
Affiliate thereof), as applicable, the ownership of such Mortgage Loan. In
connection with any such purchase by the Master Servicer (or any designated
Affiliate thereof), the Special Servicer shall deliver the related Servicing
File to the Master Servicer (or any designated Affiliate thereof). For purposes
of the other sections of this Agreement, any purchase of a Defaulted Mortgage
Loan by a designated Affiliate of the Master Servicer or Special Servicer
pursuant to this Section 3.18(c) shall be deemed a purchase of such Defaulted
Mortgage Loan by the Master Servicer or the Special Servicer, as applicable.
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(d) Subject to Section 3.24, the Special Servicer may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Certificateholders (as a collective whole). Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust) for a period of not less than ten (10) days. Subject
to Section 3.18(h) and Section 3.24, the Special Servicer shall accept the
highest cash bid received from any Person that constitutes a fair price for such
Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit bids for each
REO Property in such manner as will be reasonably likely to realize a fair price
within the time period provided for by Section 3.16(a). Subject to Section
3.18(h) and Section 3.24, the Special Servicer shall accept the first (and, if
multiple bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably
believes that it will be unable to realize a fair price (determined pursuant to
Section 3.18(e) below) for any REO Property within the time constraints imposed
by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon
such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer and the
Controlling Class Representative not less than five (5) Business Days' prior
written notice of its intention to sell any Defaulted Mortgage Loan or REO
Property pursuant to this Section 3.18(d). No Interested Person shall be
obligated to submit a bid to purchase any such Mortgage Loan or REO Property,
and notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from an Interested Person, by the Trustee. In determining whether any bid
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall be entitled
to rely on the most recent Appraisal in the related Servicing File conducted in
accordance with this Agreement within the preceding twelve (12) month period
(or, in the absence of any such Appraisal or if there has been a material change
at the subject property since any such Appraisal, on a new Appraisal to be
obtained by the Special Servicer (the cost of which shall be covered by, and be
reimbursable as, a Servicing Advance)). The appraiser conducting any such new
Appraisal shall be a Qualified Appraiser that is (i) selected by the Special
Servicer if neither the Special Servicer nor any Affiliate thereof is bidding
with respect to a Defaulted Mortgage Loan or REO Property and (ii) selected by
the Trustee if either the Special Servicer or any Affiliate thereof is so
bidding. Where any Interested Person is among those bidding with respect to a
Defaulted Mortgage Loan or REO Property, the Special Servicer shall require that
all bids be submitted to it (and, if the Special Servicer is bidding, shall be
submitted by it to the Trustee) in writing and be accompanied by a refundable
deposit of cash in an amount equal to 5% of the bid amount. In determining
whether any bid from a Person other than an Interested Person constitutes a fair
price for any such Mortgage Loan or REO Property, the Special Servicer shall
take into account the results of any Appraisal or updated Appraisal that it or
the Master Servicer may have obtained in accordance with this Agreement within
the preceding twelve (12) month period, and any
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Qualified Appraiser shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any such Mortgage Loan or REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Defaulted Mortgage Loan or REO Property unless
such bid is the highest cash bid received and at least two independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received, then the bid of the Special Servicer
or such Affiliate shall be accepted, provided that the Trustee has otherwise
determined, as provided above in this Section 3.18(e), that such bid constitutes
a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the
Special Servicer shall be unconditional; and, if accepted, the Defaulted
Mortgage Loan or REO Property shall be transferred to the Special Servicer
without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a mortgage loan
or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating with independent third parties
and taking any other action necessary or appropriate in connection with the sale
of any Defaulted Mortgage Loan or REO Property, and the collection of all
amounts payable in connection therewith. In connection therewith, the Special
Servicer may charge prospective bidders, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse (except
for warranties of title and condition contemplated by Section 3.18(d)) to the
Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only.
(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
but subject to Section 3.24, the Special Servicer shall not be obligated to
accept the highest cash bid if the Special Servicer determines, in accordance
with the Servicing Standard, that rejection of such bid would be in the best
interests of the Certificateholders (as a collective whole), and the Special
Servicer may accept a lower cash bid (from any Person other than itself or an
Affiliate) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(as a collective whole) (for example, if the prospective buyer making the lower
bid is more likely to perform its obligations or the terms (other than price)
offered by the prospective buyer making the lower bid are more favorable).
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SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account by 2:00 p.m. (New York City time) on each Master Servicer
Remittance Date, without any right of reimbursement therefor, an amount (a
"Compensating Interest Payment") equal to the lesser of (i) the aggregate amount
of Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (ii) the total amount of Master Servicing Fees and
Prepayment Interest Excesses received by the Master Servicer during the most
recently ended Collection Period.
(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated, out
of the Master Servicer's own funds, to reimburse the Special Servicer for any
Servicing Advances (other than Nonrecoverable Servicing Advances) made by but
not previously reimbursed to the Special Servicer, together with interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of reimbursement. Such reimbursement and any accompanying payment of
interest shall be made within ten (10) days of the request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer.
Upon the Master Servicer's reimbursement to the Special Servicer of any
Servicing Advance and payment to the Special Servicer of interest thereon, all
in accordance with this Section 3.19(b), the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer actually made such Servicing Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest thereon in accordance with Sections
3.05(a) and 3.11(g), at the same time, in the same manner and to the same extent
as the Master Servicer would otherwise have been entitled if it had actually
made such Servicing Advance at the time the Special Servicer did.
Notwithstanding anything to the contrary contained in any other Section of
this Agreement, if the Special Servicer is required under this Agreement (but
subject to the following paragraph), to make any Servicing Advance but does not
desire to do so, the Special Servicer may, in its sole discretion, request that
the Master Servicer make such Servicing Advance. Any such request shall be made,
in writing, in a timely manner that does not adversely affect the interests of
any Certificateholder (and, in any event, to the extent reasonably practicable,
at least five (5) Business Days in advance of the date on which the subject
Servicing Advance is to be made) and shall be accompanied by such information
and documentation regarding the subject Servicing Advance as the Master Servicer
may reasonably request; provided, however, that the Special Servicer shall not
be entitled to make such a request (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by the Special Servicer to make, within five
(5) Business Days of the Master Servicer's receipt of such request. If the
request is timely and properly made, the Special Servicer shall be relieved of
any obligations with respect to a Servicing Advance that it so requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Servicing Advance). The Master Servicer shall be entitled to
reimbursement for any Servicing Advance made by it at the direction of the
Special Servicer, together with interest thereon in accordance with Sections
3.05(a) and 3.11(g), at the same time, in the same manner and to the same extent
as the Master Servicer is entitled with respect to any other Servicing Advances
made thereby.
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Notwithstanding the foregoing provisions of this Section 3.19(b), the
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if the
Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the earliest of (i) the date on which any Mortgage
Loan becomes a Modified Mortgage Loan, (ii) the date on which the Borrower under
any Mortgage Loan becomes the subject of bankruptcy, insolvency or similar
proceedings, (iii) the 60th day (or, in the case of a Modified Mortgage Loan or
a Mortgage Loan where the Borrower has been the subject of a bankruptcy,
insolvency or similar proceedings since the Closing Date, the 30th day)
following the occurrence of any uncured delinquency in Monthly Payments with
respect to any Mortgage Loan, (iv) the date on which a receiver is appointed and
continues in such capacity in respect of the Mortgaged Property securing any
Mortgage Loan and (v) the date on which the Mortgaged Property securing any
Mortgage Loan becomes an REO Property (each such Mortgage Loan, until it ceases
to be such in accordance with the following paragraph, a "Required Appraisal
Loan"), the Special Servicer shall obtain an Appraisal of the related Mortgaged
Property, unless an Appraisal thereof had previously been obtained within the
preceding twelve (12) month period, and shall deliver a copy thereof to the
Trustee, the Master Servicer and the Controlling Class Representative. The cost
of such Appraisal shall be covered by, and be reimbursable as, a Servicing
Advance. Based on such Appraisal, the Special Servicer shall determine and
report to the Trustee the then applicable Appraisal Reduction Amount, if any,
with respect to the subject Required Appraisal Loan.
With respect to each Required Appraisal Loan (unless such Mortgage Loan has
become a Corrected Mortgage Loan and has remained current for at least twelve
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during the preceding twelve (12) months, in which case it
will cease to be a Required Appraisal Loan), the Special Servicer shall, within
thirty (30) days of each anniversary of such loan's having become a Required
Appraisal Loan, order an update of the prior Appraisal (the cost of which will
be covered by, and be reimbursable as, a Servicing Advance); and, upon receipt,
based upon such update, the Special Servicer shall redetermine and report to the
Trustee the then applicable Appraisal Reduction Amount, if any, with respect to
the subject Required Appraisal Loan.
At any time that any Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, the Controlling Class Representative may, at its own
expense, obtain and deliver to the Master Servicer, the Special Servicer and the
Trustee an Appraisal of the related Mortgaged Property or REO Property, as the
case may be. In addition, at any such time that is not less than six (6) months
following the initial determination of such Appraisal Reduction Amount (and on
one occasion at least six (6) months after the first occasion), the Holders of
any then outstanding Class of Certificates that is subordinate to the
Controlling Class may, at their own expense, obtain and deliver to the Master
Servicer, the Special Servicer and the Trustee an Appraisal that satisfies the
criteria for a Required Appraisal. Upon the written request of the Controlling
Class Representative or such Holders, the Special Servicer shall recalculate the
Appraisal Reduction Amount in respect of such Required Appraisal Loan based on
the Appraisal delivered by such party and notify the Trustee, the Master
Servicer and the Controlling Class Representative of such recalculated Appraisal
Reduction Amount.
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(d) The Master Servicer shall pay, without any right of reimbursement
therefor, the post- Closing Date fees of the Rating Agencies for ongoing
surveillance of the Rated Certificates, but shall not be required to pay without
reimbursement the fees charged by any Rating Agency for a (i) confirmation as to
the lack of an Adverse Rating Event with respect to any Class of Rated
Certificates or (ii) in connection with any other particular matter.
(e) In connection with each prepayment of principal received hereunder, the
Master Servicer shall calculate any applicable Prepayment Premium or Yield
Maintenance Charge, as the case may be, payable under the terms of the related
Mortgage Note. Upon written request of any Certificateholder, the Master
Servicer shall disclose to such Certificateholder its calculation of any such
Prepayment Premium or Yield Maintenance Charge.
(f) 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, or (y) to the extent consistent with the terms of
such Mortgage Loan, unless (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event in respect of any REMIC
Pool, (iii) the Master Servicer has notified the Rating Agencies, (iv) the
Master Servicer has confirmed that such defeasance will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (provided that the
requirement to obtain such confirmation will be a precondition to the defeasance
only if the Master Servicer is able under the related Mortgage Loan documents
and applicable law to prevent the defeasance if such confirmation is not
obtained), and (v) the Master Servicer has requested and received from the
related Borrower (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 (or, in the case of an ARD
Loan, on or before its Anticipated Repayment Date) and to timely pay each
Monthly Payment scheduled to be due prior thereto but after the defeasance;
provided that, if under the terms of the related Mortgage Loan documents, the
related Borrower delivers cash to purchase the defeasance collateral rather than
the defeasance collateral itself, the Master Servicer shall purchase the U.S.
Treasury 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 (v) of
the preceding sentence have been satisfied. Any customary and reasonable
out-of-pocket expense incurred by the Master Servicer pursuant to this Section
3.19(f) shall be paid by the Borrower of the defeased Mortgage Loan pursuant to
the related Mortgage, Mortgage Note or other pertinent document, if so allowed
by the terms of such documents. Notwithstanding the foregoing, if at any time, a
court with jurisdiction in the matter shall hold that the related Borrower 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 such court
holding and 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 Borrower 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.
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(g) The Master Servicer shall, as to each Mortgage Loan which is secured by
the interest of the related Borrower under a Ground Lease, promptly (and in any
event within 45 days of the Closing Date) notify the related ground lessor of
the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(h) With respect to each Designated ARD Loan, to the extent that the
related Mortgage Loan Seller has not on or before the Closing Date delivered to
the related Borrower a waiver of the accrual of Additional Interest to the
extent accrued at an Additional Interest Rate in excess of 2.0% per annum, the
Master Servicer shall deliver, on or before the 90th day following the Closing
Date, such a waiver on behalf of the Trust Fund as the holder of such Designated
ARD Loan.
(i) If the related Borrower shall fail to make on the related Due Date any
Monthly Payment due under the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as the Comfort Inn Hopewell, Virginia,
then the Master Servicer shall, in connection with the first three such defaults
under such Mortgage Loan, promptly send a notice of default to such Borrower so
that the related five (5) day grace period will commence.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage Loans) and, to
the limited extent permitted below, the Master Servicer (as to Performing
Mortgage Loans) each may (consistent with the Servicing Standard) agree to any
modification, waiver or amendment of any term of, extend the maturity of,
forgive interest (including Default Interest and Additional Interest) on and
principal of, forgive late payment charges, Prepayment Premiums and Yield
Maintenance Charges on, defer the payment of interest on, permit the release,
addition or substitution of collateral securing, and/or permit the release,
addition or substitution of the Borrower on or any guarantor of, any Mortgage
Loan it is required to service and administer hereunder, subject, however, to
Sections 3.08 and 3.24 and, further to each of the following limitations,
conditions and restrictions:
(i) other than as provided in Sections 2.03(a), 3.02, 3.08, 3.19(h),
3.20(f) and 3.20(g), the Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan
without the consent of the Special Servicer (it being understood and agreed
that (A) the Master Servicer shall promptly provide the Special Servicer
with all information that the Special Servicer may reasonably request in
order to withhold or grant any such consent, (B) the Special Servicer (for
no additional compensation) shall decide whether to withhold or grant such
consent in accordance with the Servicing Standard and (C) if any such
consent has not been expressly denied within ten (10) Business Days of the
Special Servicer's receipt from the Master Servicer of all information
reasonably requested thereby in order to make an informed decision, such
consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(f), the
Special Servicer shall not, in the case of any Specially Serviced Mortgage
Loan, agree to (or, in the case of any Performing Mortgage Loan, consent to
the Master Servicer's agreeing to) any modification, waiver or amendment of
any term of, or, in the case of any Specially Serviced Mortgage Loan, take
(or, in the case of any Performing Mortgage Loan, consent to the Master
Servicer's taking) any of the other acts
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referenced in this Section 3.20(a) with respect to, any Mortgage Loan that
would affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Special Servicer's
reasonable, good faith judgment, would materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon, unless a material default on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable, good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably likely
to produce a greater recovery to Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Mortgage
Rate), than would liquidation;
(iii) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, extend (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's extending) the date on which any
Balloon Payment is scheduled to be due on any Mortgage Loan to a date
beyond the earliest of (A) the fifth anniversary of such Mortgage Loan's
Stated Maturity Date, (B) two years prior to the Rated Final Distribution
Date and (C) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, ten years prior to the end of the then current term of
the related Ground Lease; and, furthermore, the Special Servicer shall not,
in the case of any Specially Serviced Mortgage Loan, grant (or, in the case
of any Performing Mortgage Loan, consent to the Master Servicer's granting)
any such extension unless (A) the Special Servicer's recovery determination
contemplated by clause (ii) above is supported by an Appraisal performed
within the preceding twelve (12) month period and (B) the related Borrower
agrees to deliver to the Special Servicer, the Trustee and the Controlling
Class Representative quarterly operating statements with respect to the
related Mortgaged Property (the Special Servicer (or, if applicable, the
Master Servicer at the direction of the Special Servicer) to request that
such statements be audited, provided that the Special Servicer may waive
such condition relating to such statements being audited, in its sole
discretion);
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan that would result in an Adverse REMIC Event with respect to
any REMIC Pool or an Adverse Grantor Trust Event with respect to Grantor
Trust D-1 or Grantor Trust D-2;
(v) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, permit (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's permitting) any Borrower to add or
substitute any collateral for its Mortgage Loan unless the Special Servicer
shall have first (A) determined in its reasonable, good faith judgment,
based upon a Phase I Environmental Assessment (and any additional
environmental testing that the Special Servicer deems necessary and
prudent) conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments, at the expense of the Borrower, that such
additional or substitute collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws and/or regulations and (B)
received written confirmation from each Rating Agency that such
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addition or substitution of collateral will not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated Certificates;
and
(vi) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, release (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's releasing), including in connection
with a substitution contemplated by clause (v) above, any collateral
securing an outstanding Mortgage Loan except as provided in Section
3.09(d), or except as provided in Section 3.20(g), or except where a
Mortgage Loan (or, in the case of a Cross-Collateralized Group, where such
entire Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the Special Servicer's good faith and reasonable judgment,
materially and adversely affect the Net Operating Income being generated by
or the use of the related Mortgaged Property, or (2) there is a
corresponding principal paydown of such Mortgage Loan in an amount at least
equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency); provided that (x) the limitations, conditions and restrictions set
forth in clauses (i) through (vi) above shall not apply to any of the acts
referenced in this Section 3.20(a) with respect to any Mortgage Loan that
is required under the terms of such Mortgage Loan in effect on the Closing
Date (or, in the case of a Replacement Mortgage Loan, on the related date
of substitution) or that is solely within the control of the related
Borrower, and (y) notwithstanding clauses (i) through (vi) above, neither
the Master Servicer nor the Special Servicer shall be required to oppose
the confirmation of a plan in any bankruptcy or similar proceeding
involving a Borrower if in its reasonable, good faith judgment such
opposition would not ultimately prevent the confirmation of such plan or
one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if the Special Servicer's analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and in
accordance with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a),
shall not, for purposes of calculating monthly distributions and reporting
information to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit or that such interest may actually be
capitalized; provided, however, that this sentence shall not limit the rights of
the Master Servicer or the Special Servicer on behalf of the Trust to enforce
any obligations of the related Mortgagor under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or the Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and
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is permitted by the terms of this Agreement, require that such Borrower pay
to it a reasonable or customary fee (which shall in no event exceed 1.0% of the
unpaid principal balance of the related Mortgage Loan) for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by it. All such fees collected by the Master
Servicer and/or the Special Servicer shall be allocable between such parties, as
Additional Master Servicing Compensation and Additional Special Servicing
Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered into
or taken in respect of the Mortgage Loans pursuant to this Section 3.20 shall be
in writing. Each of the Special Servicer and the Master Servicer shall notify
the other such party and the Trustee, in writing, of any modification, waiver,
amendment or other action entered into or taken thereby in respect of any
Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the other such party, an original counterpart of
the agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within 10 Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above,
the Special Servicer shall deliver to the Master Servicer, the Trustee and the
Rating Agencies an Officer's Certificate certifying that all of the requirements
of Section 3.20(a) have been met and setting forth in reasonable detail the
basis of the determination made by it pursuant to Section 3.20(a)(ii); provided
that, if such modification, waiver or amendment involves an extension of the
maturity of any Mortgage Loan, such Officer's Certificate shall be delivered to
the Master Servicer, the Trustee and the Rating Agencies before the
modification, waiver or amendment is agreed to.
(f) With respect to any Designated ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted, in its discretion, to waive (such
waiver to be in writing addressed to the related Borrower, with a copy to the
Trustee) all or any portion of the accrued Additional Interest in respect of
such ARD Loan if, prior to the related maturity date, the related Borrower has
requested the right to prepay such ARD Loan in full together with all payments
required by the related Mortgage Loan documents in connection with such
prepayment except for such accrued Additional Interest, provided that the Master
Servicer has determined, in its reasonable, good faith judgment, that the waiver
of the Trust's right to receive such accrued Additional Interest is reasonably
likely to produce a greater payment to Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate) than a refusal to waive the right to such Additional Interest. The Master
Servicer will have no liability to the Trust, the Certificateholders or any
other Person so long as such determination is exercised in accordance with the
Servicing Standard.
(g) The Master Servicer shall not be required to seek the consent of the
Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies in order to approve the following
modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan documents); and (iii) grants of easements that do not materially affect the
use or value of a Mortgaged Property or the Borrower's ability to make any
payments with respect to the related Mortgage Loan; provided that any such
modification, waiver or amendment (w) would not in any way affect a payment term
of the Certificates, (x) would not constitute a "significant modification" of
such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b)
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and would not otherwise constitute an Adverse REMIC Event with respect to any
REMIC Pool or an Adverse Grantor Trust Event with respect to either Grantor
Trust D-1 or Grantor Trust D-2, (y) agreeing to such modification, waiver or
amendment would be consistent with the Servicing Standard, and (z) agreeing to
such modification, waiver or amendment shall not violate the terms, provisions
or limitations of this Agreement or any other document contemplated hereby.
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver the related Servicing File, to the Special Servicer and shall use its
best efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. To the extent such
is in the possession of the Master Servicer or any Sub-Servicer thereof, the
information, documents and records to be delivered by the Master Servicer to the
Special Servicer pursuant to the prior sentence shall include, but not be
limited to, financial statements, appraisals, environmental/engineering reports,
leases, rent rolls, title insurance policies, UCC's and tenant estoppels. The
Master Servicer shall use its best efforts to comply with the preceding two
sentences within five (5) Business Days of the occurrence of each related
Servicing Transfer Event. The Special Servicer may, as to any delinquent
Mortgage Loan, prior to the occurrence of a Servicing Transfer Event with
respect thereto, request and obtain the foregoing documents and information in
order to perform its duties described in Section 3.02.
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, and shall
return the related Servicing File within five (5) Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related
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Mortgage Loan information, including correspondence with the related Borrower
generated while such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations hereunder, each
of the Master Servicer and the Special Servicer shall be entitled to rely upon
written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may enter into Sub-Servicing Agreements to provide for the performance
by third parties of any or all of their respective obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) insofar as it
affects the Trust, is consistent with this Agreement in all material respects
and requires the Sub-Servicer to comply with all of the applicable conditions of
this Agreement; (ii) provides that if the Master Servicer or the Special
Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including by reason of an Event of Default), the Trustee or
its designee or any other successor to the Master Servicer or the Special
Servicer, as the case may be, may thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of the
Master Servicer or the Special Servicer, as the case may be, under such
agreement or, alternatively, may terminate such Sub-Servicing Agreement without
cause and without payment of any penalty or termination fee; (iii) provides that
the Trustee, for the benefit of the Certificateholders, shall be a third party
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, any successor Master Servicer or
Special Servicer, as the case may be, or any Certificateholder shall have any
duties under such agreement or any liabilities arising therefrom; (iv) permits
any purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
agreement with respect to such purchased Mortgage Loan at its option and without
penalty; (v) does not permit the Sub-Servicer to enter into or consent to any
modification, waiver or amendment or otherwise take any action on behalf of the
Master Servicer or Special Servicer, as the case may be, contemplated by Section
3.20 hereof without the consent of the Master Servicer or Special Servicer, as
the case may be; and (vi) does not permit the Sub-Servicer any greater rights of
indemnification out of the Trust Fund than those that the Master Servicer or the
Special Servicer, as the case may be, have pursuant to Section 6.03; provided
that the appointment by the Master Servicer or Special Servicer of a third-party
contractor for the purpose of performing discrete, ministerial functions shall
not be subject to this Section 3.22 (except that the Master Servicer or the
Special Servicer, as the case may be, shall remain responsible for the actions
of such third-party contractors and shall pay all fees and expenses of such
third-party contractors, unless otherwise expressly provided herein). In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall, with respect to any Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be suspended for so long as such
Mortgage Loan continues to be a Specially Serviced Mortgage Loan), and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans and REO Property and shall terminate with
respect to any such Mortgage Loan which ceases to be a Specially
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Serviced Mortgage Loan. The Master Servicer and the Special Servicer shall each
notify the other, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer. The Master Servicer and the Special
Servicer shall each 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 or the
Special Servicer include actions taken or to be taken by a Sub-Servicer on
behalf of the Master Servicer or the Special Servicer, as the case may be; and,
in connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer or the Special Servicer hereunder to make
Advances shall be deemed to have been advanced by the Master Servicer or the
Special Servicer, as the case may be, out of its own funds and, accordingly,
such Advances shall be recoverable by such Sub-Servicer in the same manner and
out of the same funds as if such Sub-Servicer were the Master Servicer or the
Special Servicer, as the case may be. Such Advances shall accrue interest in
accordance with Sections 3.11(g) and/or 4.03(e), such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer shall each be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment.
(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.
(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the Certificateholders or the Trust) monitor the performance
and enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master Servicer
or the Special Servicer, as applicable, in its good faith and reasonable
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer shall each have the right to remove a Sub-Servicer retained by
it at any time it considers such removal to be in the best interests of
Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve as such
under this Agreement for any reason (including by reason of an Event of Default)
and no successor Master Servicer or Special Servicer, as the case may be, has
succeeded to its rights and assumed its obligations hereunder or, in the case of
the Special Servicer, no replacement Special Servicer has been designated
pursuant to Section 6.06, then the Trustee or other successor Master Servicer or
Special Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, unless the Trustee elects to terminate any such
Sub-Servicing Agreement in accordance with its terms and Section 3.22(a)(ii)
hereof. In any event, if a Sub-Servicing Agreement is to be assumed by the
Trustee or another successor thereto, then the Master Servicer or the Special
Servicer, as applicable, at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans then being serviced thereunder
and an accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
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(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust.
(f) The Special Servicer shall not enter into any Sub-Servicing Agreement
unless either: (i) the Rating Agencies have confirmed in writing that entering
into such agreement will not result in an Adverse Rating Event; or (ii) such
agreement relates to one or Mortgage Loans (including any such Mortgage Loan(s)
previously sub-serviced in accordance with this Section 3.22) that together
represent less than 25% of the aggregate outstanding principal balance of all
Specially Serviced Mortgage Loans.
SECTION 3.23. Controlling Class Representative.
(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 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process established by the
Trustee in order to select a Controlling Class Representative, which process may
include the designation of the Controlling Class Representative by the Majority
Controlling Class Certificateholder by a writing delivered to the Trustee. No
appointment of any Person as a Controlling Class Representative shall be
effective until such Person provides the Trustee with written confirmation of
its acceptance of such appointment, an address and telecopy number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of receiving a
request therefor from the Master Servicer or Special Servicer, the Trustee shall
deliver to the requesting party the identity of the Controlling Class
Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Holders (or, in the
case of Book-Entry Certificates, subject to Section 5.06, by the Depository or
the Certificate Owners) of such Certificates, and the Master Servicer and the
Special Servicer shall be entitled to rely on such information provided by the
Trustee with respect to any obligation or right hereunder that the Master
Servicer and the Special Servicer may have to deliver information or otherwise
communicate
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with the Controlling Class Representative or any of the Holders (or,
if applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two (2) Business Days of the selection, resignation or removal
of a Controlling Class Representative, the Trustee shall notify the other
parties to this Agreement of such event. The expenses incurred by the Trustee in
connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of the
Trust payable out of the Collection Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as such by
giving written notice to the Trustee and to each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant to
this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall be
borne by the Holders (or, if applicable, the Certificate Owners) of Certificates
of the Controlling Class, pro rata according to their respective Percentage
Interests in such Class, and not by the Trust. Notwithstanding the foregoing, if
a claim is made against the Controlling Class Representative by a Borrower with
respect to this Agreement or any particular Mortgage Loan, the Controlling Class
Representative shall immediately notify the Trustee, the Master Servicer and the
Special Servicer, whereupon (if the Special Servicer or the Trust are also named
parties to the same action and, in the sole judgment of the Special Servicer,
(i) the Controlling Class Representative had acted in good faith, without
negligence or willful misfeasance with regard to the particular matter, and (ii)
there is no potential for the Special Servicer or the Trust to be an adverse
party in such action as regards the Controlling Class Representative) the
Special Servicer on behalf of the Trust shall, subject to Section 6.03, assume
the defense of any such claim against the Controlling Class Representative. This
provision shall survive the termination of this Agreement and the termination or
resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) No later than thirty (30) days after a Servicing Transfer Event for a
Specially Serviced Mortgage Loan, the Special Servicer shall, subject to Section
3.24(b), deliver to each Rating Agency, the Master Servicer, the Trustee and the
Controlling Class Representative a report (the "Asset Status Report") with
respect to such Mortgage Loan and the related Mortgaged Property. Such Asset
Status Report shall include the following information to the extent reasonably
determinable:
(i) a summary of the status of such Specially Serviced Mortgage Loan;
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(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 and to the
enforcement of any related guaranties or other collateral for such
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 related Mortgaged Property, together
with the assumptions used in the calculation thereof;
(v) a 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 the Controlling Class Representative disapproves of an Asset Status
Report, the Controlling Class Representative shall, within ten (10) Business
Days of receiving such Asset Status Report, provide notice in writing to the
Special Servicer of such disapproval, and the Special Servicer shall, subject to
Section 3.24(b), revise such Asset Status Report and deliver to the Controlling
Class Representative, the Trustee, the Rating Agencies and the Master Servicer a
new Asset Status Report as soon as practicable, but in no event later than
thirty (30) days after such disapproval. If the Controlling Class Representative
does not disapprove of an Asset Status Report within such ten (10) Business Day
period, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report (provided that the Special Servicer shall not take
any action that is contrary to applicable law or the terms of the applicable
loan documents). The Special Servicer shall, subject to Section 3.24(b), revise
such Asset Status Report as provided above in this paragraph until the earliest
of (a) the failure of the Controlling Class Representative to disapprove such
revised Asset Status Report in writing within ten (10) Business Days of its
receipt thereof; (b) a determination by the Special Servicer as set forth below
or (c) the passage of ninety (90) days from the date of preparation of the first
Asset Status Report. The Special Servicer may, from time to time, subject to
Section 3.24(b), modify any Asset Status Report it has previously delivered and
implement the new action in such revised report so long as such revised report
has been prepared, reviewed and not rejected as provided above.
Notwithstanding the prior paragraph, the Special Servicer may: (i) take any
action set forth in an Asset Status Report before the expiration of the ten (10)
Business Day period during which the Controlling Class Representative may reject
such report if (A) the Special Servicer has reasonably determined that failure
to take such action would materially and adversely affect the interests of the
Certificateholders and (B) it has made a reasonable effort to contact the
Controlling Class Representative; and (ii) determine whether any affirmative
disapproval of an Asset Status Report is not in the best interest of all the
Certificateholders pursuant to the Servicing Standard. Upon making any such
determination referred to in clause (ii) of the prior sentence, the Special
Servicer shall notify the Trustee of such determination and deliver to the
Trustee a proposed notice to Certificateholders which is to include a copy of
the relevant Asset Status Report. The Trustee shall thereupon send such notice
to all Certificateholders; and, if the Holders of Certificates representing a
majority of the Voting Rights fail, within ten (10) Business Days of the
Trustee's sending such notice, to reject such Asset Status Report, the Special
Servicer shall
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implement the same. If the Asset Status Report is rejected within such ten (10)
Business Day period by the Holders of Certificates representing a majority of
the Voting Rights, the Special Servicer shall, subject to Section 3.24(b),
revise such Asset Status Report as described above. The Trustee shall be
entitled to reimbursement from the Trust for the reasonable out-of-pocket
expenses of providing such notices.
The Special Servicer may not take any action inconsistent with an Asset
Status Report that has been adopted as described above, unless such action would
be required in order to act in accordance with the Servicing Standard.
(b) Notwithstanding anything herein to the contrary, any action recommended
by the Special Servicer in an Asset Status Report (or any revision thereof)
shall be consistent with the Servicing Standard, and the Controlling Class
Representative may not direct the Special Servicer to act in any manner (and the
Special Servicer shall disregard any such direction) that would:
(i) require or cause the Special Servicer to violate the terms of a
Specially Serviced Mortgage Loan, applicable law or any provision of this
Agreement, including the Special Servicer's obligation to act in accordance
with the Servicing Standard; or
(ii) result in an Adverse REMIC Event with respect to any REMIC Pool
or an Adverse Grantor Trust Event with respect to either Grantor Trust D-1
or Grantor Trust D-2; or
(iii) expose the Master Servicer, the Special Servicer, the Depositor,
any Mortgage Loan Seller, the Trust, the Trustee or their Affiliates,
officers, directors, employees or agents to any claim, suit or liability;
or
(iv) materially expand the scope of the Special Servicer's, the Master
Servicer's or the Trustee's responsibilities under this Agreement.
In addition, the Special Servicer shall not have any obligation to consult
with or notify any Controlling Class Representative prior to acting, and the
provisions of this Agreement requiring such shall be of no effect, during the
period prior to the initial selection of a Controlling Class Representative and,
if any Controlling Class Representative resigns or is removed, during the period
following such resignation or removal until a replacement is selected.
(c) The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. Each Certificateholder
acknowledges and agrees, by its acceptance of its Certificates, that the
Controlling Class Representative may have special relationships and interests
that conflict with those of Holders of one or more Classes of 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 may take actions
that favor interests of the Holders of the Controlling Class over the interests
of the Holders of one or more other Classes of Certificates, that the
Controlling Class Representative shall not be deemed to have been negligent or
reckless, or to have acted in bad faith or engaged in willful
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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.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on deposit
in the Distribution Account 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 for such Distribution Date:
(i) to make distributions of interest to the Holders of the respective
Classes of Senior Certificates, pro rata based on entitlement, up to
an amount equal to all Distributable Certificate Interest in respect
of each such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(ii) to make distributions of principal to the Holders of the Class A-1A
and Class A-1B Certificates, allocable as between such Classes of
Certificateholders as provided below, up to an amount equal to the
lesser of (A) the aggregate of the then outstanding Class Principal
Balances of the Class A-1A and Class A-1B Certificates and (B) the
Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class A-1A and Class A-1B
Certificates, pro rata based on entitlement, up to an amount equal
to all Unreimbursed Principal Balance Reductions, if any, previously
incurred with respect to each such Class of Certificates;
(iv) to make distributions of interest to the Holders of the Class A-2
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(v) after the Class Principal Balances of the Class A-1A and Class A-1B
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class A-2 Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class A-2 Certificates and (B) the excess,
if any, of the Principal Distribution Amount for such Distribution
Date over the amounts, if any, distributed on such Distribution Date
pursuant to clause (ii) above;
(vi) to reimburse the Holders of the Class A-2 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(vii) to make distributions of interest to the Holders of the Class A-3
Certificates, up to 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;
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(viii) after the Class Principal Balances of the Class A-1A, Class A-1B and
Class A-2 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class A-3
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class A-3 Certificates
and (B) the excess, if any, of the Principal Distribution Amount for
such Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii) and (v) above;
(ix) to reimburse the Holders of the Class A-3 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(x) to make distributions of interest to the Holders of the Class A-4
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xi) after the Class Principal Balances of the Class A-1A, Class A-1B,
Class A-2 and Class A-3 Certificates have been reduced to zero, to
make distributions of principal to the Holders of the Class A-4
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class A-4 Certificates
and (B) the excess, if any, of the Principal Distribution Amount for
such Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v) and (viii) above;
(xii) to reimburse the Holders of the Class A-4 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xiii) to make distributions of interest to the Holders of the Class B-1
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xiv) after the Class Principal Balances of the Class A Certificates have
been reduced to zero, to make distributions of principal to the
Holders of the Class B-1 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of the
Class B-1 Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the amounts, if
any, distributed on such Distribution Date pursuant to clauses (ii),
(v), (viii) and (xi) above;
(xv) to reimburse the Holders of the Class B-1 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
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(xvi) to make distributions of interest to the Holders of the Class B-2
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xvii) after the Class Principal Balances of the Class A and Class B-1
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B-2 Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class B-2 Certificates and (B) the excess,
if any, of the Principal Distribution Amount for such Distribution
Date over the amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi) and (xiv) above;
(xviii) to reimburse the Holders of the Class B-2 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xix) to make distributions of interest to the Holders of the Class B-3
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xx) after the Class Principal Balances of the Class A, Class B-1 and
Class B-2 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class B-3
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-3 Certificates
and (B) the excess, if any, of the Principal Distribution Amount for
such Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi), (xiv)
and (xvii) above;
(xxi) to reimburse the Holders of the Class B-3 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxii) to make distributions of interest to the Holders of the Class B-4
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxiii) after the Class Principal Balances of the Class A, Class B-1, Class
B-2 and Class B-3 Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class B-4
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-4 Certificates
and (B) the excess, if any, of the Principal Distribution Amount for
such Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi),
(xiv), (xvii) and (xx) above;
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(xxiv) to reimburse the Holders of the Class B-4 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxv) to make distributions of interest to the Holders of the Class B-5
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxvi) after the Class Principal Balances of the Class A, Class B-1, Class
B-2, Class B-3 and Class B-4 Certificates have been reduced to zero,
to make distributions of principal to the Holders of the Class B-5
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of the Class B-5 Certificates
and (B) the excess, if any, of the Principal Distribution Amount for
such Distribution Date over the amounts, if any, distributed on such
Distribution Date pursuant to clauses (ii), (v), (viii), (xi),
(xiv), (xvii), (xx) and (xxiii) above;
(xxvii) to reimburse the Holders of the Class B-5 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxviii) to make distributions of interest to the Holders of the Class B-6
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxix) after the Class Principal Balances of the Class A, Class B-1, Class
B-2, Class B-3, Class B-4 and Class B-5 Certificates have been
reduced to zero, to make distributions of principal to the Holders
of the Class B-6 Certificates, up to an amount equal to the lesser
of (A) the then outstanding Class Principal Balance of the Class B-6
Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the amounts, if
any, distributed on such Distribution Date pursuant to clauses (ii),
(v), (viii), (xi), (xiv), (xvii), (xx), (xxiii) and (xxvi) above;
(xxx) to reimburse the Holders of the Class B-6 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxxi) to make distributions of interest to the Holders of the Class B-7
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxii) after the Class Principal Balances of the Class A, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates have
been reduced to zero, to make distributions of principal to the
Holders of the Class B-7 Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of the
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Class B-7 Certificates and (B) the excess, if any, of the Principal
Distribution Amount for such Distribution Date over the amounts, if
any, distributed on such Distribution Date pursuant to clauses (ii),
(v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix)
above;
(xxxiii) to reimburse the Holders of the Class B-7 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxxiv) to make distributions of interest to the Holders of the Class B-8
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxv) after the Class Principal Balances of the Class A, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-7
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B-8 Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class B-8 Certificates and (B) the excess,
if any, of the Principal Distribution Amount for such Distribution
Date over the amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix) and (xxxii) above;
(xxxvi) to reimburse the Holders of the Class B-8 Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xxxvii) to make distributions of interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxviii) after the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class C Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class
Principal Balance of the Class C Certificates and (B) the excess, if
any, of the Principal Distribution Amount for such Distribution Date
over the amounts, if any, distributed on such Distribution Date
pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii) and (xxxv) above;
(xxxix) to reimburse the Holders of the Class C Certificates, up to an
amount equal to all Unreimbursed Principal Balance Reductions, if
any, previously incurred with respect to such Class of Certificates;
(xl) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A)
the aggregate distributions deemed made in respect of the REMIC II
Regular Interests on such Distribution Date pursuant to Section
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4.01(i), over (B) the aggregate distributions made in respect of the
Regular Interest Certificates on such Distribution Date pursuant to
clauses (i) through (xxxix) above;
(xli) to make distributions to the Holders of the Class R-II Certificates,
up to 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(j),
over (B) the aggregate distributions deemed made in respect of the
REMIC II Regular Interests on such Distribution Date pursuant to
Section 4.01(i); and
(xlii) to make distributions to the Holders of the Class R-I Certificates,
up to an amount equal to the excess, if any, of (A) the Available
Distribution Amount for such Distribution Date, over (B) the
aggregate distributions made in respect of the other Classes of
Certificates on such Distribution Date pursuant to clauses (i)
through (xli) above;
provided that, on the Final Distribution Date, the distributions of principal to
be made pursuant to clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv) and (xxxviii) above shall, in each such
case, subject to the then remaining portion of the Available Distribution Amount
for such date, be made to the Holders of the relevant Class or Classes of
Principal Balance Certificates otherwise entitled to distributions of principal
pursuant to such clause in an amount equal to the entire then remaining Class
Principal Balance (or, in the case of clause (ii) above, if applicable, the
entire aggregate of the then remaining Class Principal Balances) of such Class
or Classes of Certificates outstanding immediately prior to such Final
Distribution Date.
On each Distribution Date prior to the earlier of (i) the Senior Principal
Distribution CrossOver Date and (ii) the Final Distribution Date, the Trustee
shall pay the distributions of principal made on the Class A-1A and Class A-1B
Certificates pursuant to clause (ii) above, first, to the Holders of the Class
A-1A Certificates, until the Class Principal Balance of such Class has been
reduced to zero, and thereafter, to the Holders of the Class A-1B Certificates,
until the Class Principal Balance of such Class has been reduced to zero. On any
Distribution Date coinciding with or following the Senior Principal Distribution
Cross-Over Date, and (in any event) on the Final Distribution Date, the Trustee
shall pay the distributions of principal made on the Class A-1A and Class A-1B
Certificates pursuant to clause (ii) above to the Holders of both the Class A-1A
Certificates and the Class A-1B Certificates, on a pro rata basis, in accordance
with the respective Class Principal Balances of such Classes outstanding
immediately prior to such Distribution Date, until the Class Principal Balance
of each such Class has been reduced to zero.
All distributions of interest made in respect of the Class S Certificates
on any Distribution Date pursuant to clause (i) above, shall be deemed to have
been made in respect of the Class S REMIC III Regular Interests, on a pro rata
basis in accordance with the respective amounts of Distributable Component
Interest in respect of each Class S REMIC III Regular Interest for such
Distribution Date and, to the extent not previously deemed paid pursuant to this
paragraph, for all prior Distribution Dates.
(b) If a Yield Maintenance Charge is collected with respect to any Mortgage
Loan during any particular Collection Period, then the Trustee shall, on the
Distribution Date corresponding to such Collection Period, withdraw from the
Distribution Account and distribute among the Holders of the respective Classes
of Regular Interest Certificates in the proportions set forth below the entire
amount of such Yield Maintenance Charge as additional interest:
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(i) The Holders of the Class (or Classes) of Principal Balance
Certificates then entitled to distributions of principal on such
Distribution Date shall be entitled to an aggregate amount (allocable among
such Classes, if more than one, on a pro rata basis in accordance with the
relative amounts of such distributions of principal) equal to the product
of (A) the amount of such Yield Maintenance Charge, multiplied by (B) a
fraction (not greater than one or less than zero), the numerator of which
is equal to the excess, if any, of the Pass-Through Rate for the
corresponding Interest Accrual Period in respect of such Class of Principal
Balance Certificates (or, if two or more Classes are involved, the
Pass-Through Rate for the corresponding Interest Accrual Period in respect
of such of those Classes as has the most senior right of payment pursuant
to Section 4.01(a) or in the case of the Class A-1A and Class A-1B
Certificates, as has the earlier Latest Possible Maturity Date), over the
relevant Discount Rate, and the denominator of which is equal to the
excess, if any, of the Mortgage Rate for the Mortgage Loan in respect of
which such Yield Maintenance Charge was received, over the relevant
Discount Rate.
(ii) Any portion of such Yield Maintenance Premium that may remain
after such distributions on the Principal Balance Certificates will be
distributed to the Holders of the Class S Certificates.
For purposes of the foregoing paragraph, the "Discount Rate" shall be the
rate which, when compounded monthly, is equivalent to the Treasury Rate when
compounded semi-annually (e.g., a 6% per annum Treasury Rate would equate to a
5.9263% per annum Discount Rate). The "Treasury Rate" is the yield calculated by
the linear interpolation of the yields, as reported in Federal Reserve
Statistical Release H.15--Selected Interest Rates under the heading "U.S.
government securities/Treasury constant maturities" for the week ending prior to
the date of the relevant principal prepayment, of U.S. Treasury constant
maturities with a maturity date (one longer and one shorter) most nearly
approximating (a) in the case of any GECA Mortgage Loan (except in the case of
the GECA Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as the "Country Squire Apartments--South"), the weighted
average life (calculated in accordance with the related loan documents) of the
prepaid Mortgage Loan immediately prior to the prepayment and (b) in the case of
any Column Mortgage Loan (and in the case of the GECA Mortgage Loan secured by
the Mortgaged Property identified on the Mortgage Loan Schedule as the "Country
Squire Apartments--South"), the Stated Maturity Date (or, in the case of any
Column Loan that is an ARD Loan, the Anticipated Repayment Date) of the prepaid
Mortgage Loan. If Release H.15 is no longer published, the Master Servicer shall
select a comparable publication to determine the Treasury Rate.
If a Prepayment Premium is collected with respect to any Mortgage Loan
during any particular Collection Period, then the Trustee shall, on the
Distribution Date corresponding to such Collection Period, withdraw from the
Distribution Account and distribute to the Holders of the Class S Certificates
the entire amount of such Prepayment Premium as additional interest.
Any Prepayment Premiums and/or Yield Maintenance Charges distributed in
respect of the Class S Certificates on any Distribution Date pursuant to the
foregoing paragraphs of this Section 4.01(b) shall be deemed to have been
distributed in respect of the Class S REMIC III Regular Interests, on a pro rata
basis, in accordance with the respective amounts of Distributable Component
Interest for such Distribution Date.
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(c) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts then on deposit in the Class D-1 Sub-Account of
the Distribution Account that represent Additional Interest collected during or
prior to the related Collection Period in respect of GECA Mortgage Loans that
are ARD Loans and shall distribute such amounts to the Holders of the Class D-1
Certificates. On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts then on deposit in the Class D-2 Sub-Account of
the Distribution Account that represent Additional Interest collected during or
prior to the related Collection Period in respect of Column Mortgage Loans that
are ARD Loans and shall distribute such amounts to the Holders of the Class D-2
Certificates.
(d) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among such Certificates based
on their respective Percentage Interests. Except as otherwise provided below,
all such distributions made with respect to each Class of Certificates on each
Distribution Date shall be made to the Holders of such Certificates of record at
the close of business on the related Record Date and, in the case of each such
Holder, shall be made by wire transfer of immediately available funds to the
account thereof at a bank or other entity having appropriate facilities
therefor, if such Holder shall have provided the Trustee with wiring
instructions no less than five (5) 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), and otherwise shall be made by
check mailed to the address of such Holder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any portion of a previously incurred Unreimbursed Principal
Balance Reduction allocable to such Certificate) will be made in 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. Any distribution that is to be
made with respect to a Principal Balance Certificate in reimbursement of any
portion of an Unreimbursed Principal Balance Reduction allocable to such
Certificate, 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 Holder that surrendered such Certificate at the last
address set forth for such Holder in the Certificate Register or at any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the 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 parties hereto 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 the Letter of Representations
among the Depositor, the Trustee and the initial Depository, a copy of which
Letter of Representations is attached hereto as Exhibit C.
(f) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
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(g) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date (such final distribution to be
determined, in the case of a Class of Principal Balance Certificates, without
regard to any possible future reimbursement of any portion of a previously
incurred Unreimbursed Principal Balance Reduction in respect of such Class), the
Trustee shall, as promptly as possible (and, in any event, no later than five
(5) 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 Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after the
end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any 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, then, subject to applicable escheat laws, the Trustee
shall distribute to the Class R-III Certificateholders all unclaimed funds.
(h) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from payments of interest or original issue discount to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholder.
(i) All distributions made in respect of each Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a) or 4.01(b)
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of the Corresponding REMIC II Regular Interest for such Class of
Certificates; and all distributions made in respect of the Class S Certificates
on each Distribution Date pursuant to Section 4.01(a) or 4.01(b), and allocable
to any particular Class S REMIC III Regular Interest, shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of the
Corresponding REMIC II Regular Interest for such Class S REMIC III Regular
Interest. In each case, if such distribution on any such Class of Certificates
was a distribution of interest, of principal, of additional interest (in the
form
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of Prepayment Premiums or Yield Maintenance Charges) or in reimbursement of any
related Unreimbursed Principal Balance Reductions in respect of such Class of
Certificates, then the corresponding distribution deemed to be made on a REMIC
II Regular Interest pursuant to the preceding sentence shall be deemed also to
be a distribution of interest, of principal, of additional interest (in the form
of Prepayment Premiums or Yield Maintenance Charges) or in reimbursement of any
related Unreimbursed Principal Balance Reductions in respect of such REMIC II
Regular Interest. The actual distributions made by the Trustee on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or 4.01(b), as applicable, shall be deemed to have been so made from the
amounts deemed distributed in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to this Section 4.01(i). Notwithstanding the deemed
distributions on the REMIC II Regular Interests described in this Section
4.01(i), actual distributions of funds from the Distribution Account shall be
made only in accordance with Section 4.01(a), 4.01(b) or 4.01(c), as applicable.
(j) On each Distribution Date, immediately prior to making any actual
distributions on the REMIC III Certificates pursuant to Section 4.01(a) or the
corresponding deemed distributions on the REMIC II Regular Interests pursuant to
Section 4.01(i), the Trustee shall be deemed to have made out of the Available
Distribution Amount for such Distribution Date, the following distributions in
the following order of priority, in each case to the extent of the remaining
portion of such Available Distribution Amount:
first, distributions of interest to REMIC II in respect of all the REMIC I
Regular Interests, up to an amount equal to, and pro rata among the REMIC I
Regular Interests in accordance with, all Uncertificated Distributable
Interest in respect of each REMIC I Regular Interest for such Distribution
Date and, to the extent not previously deemed paid pursuant to this Section
4.01(j), for all prior Distribution Dates;
second, distributions of principal to REMIC II in respect of all the REMIC
I Regular Interests, up to an amount equal to, and pro rata among the REMIC
I Regular Interests in accordance with, that portion, if any, of the
Principal Distribution Amount attributable to each and every Mortgage Loan
and/or REO Mortgage Loan, as the case may be, that relates to each REMIC I
Regular Interest; and
third, distributions to REMIC II in respect of all the REMIC I Regular
Interests (including any REMIC I Regular Interests whose Uncertificated
Principal Balances have previously been reduced to zero), up to an amount
equal to, in reimbursement of, and pro rata in accordance with, all
Unreimbursed Principal Balance Reductions, if any, previously incurred in
respect of each REMIC I Regular Interest.
In addition, on each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Certificates pursuant to Section 4.01(b)
or the corresponding deemed distributions on the REMIC II Regular Interests
pursuant to Section 4.01(i), the Trustee shall be deemed to have distributed to
REMIC II each Prepayment Premium and Yield Maintenance Charge then on deposit in
the Distribution Account that was received on any Mortgage Loan or REO Mortgage
Loan during or prior to the related Collection Period, such distribution to be
deemed made in respect of the REMIC I Regular Interest that relates to such
Mortgage Loan or REO Mortgage Loan, as the case may be.
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The distributions deemed made by the Trustee on each Distribution Date in
respect of the REMIC II Regular Interests pursuant to Section 4.01(i), as well
as the distributions actually made by the Trustee on each Distribution Date in
respect of the Class R-II and REMIC III Certificates pursuant to Section 4.01(a)
and/or Section 4.01(b), shall be deemed to have been so made or deemed made, as
the case may be, from the amounts deemed distributed in respect of the REMIC I
Regular Interests on such Distribution Date pursuant to this Section 4.01(j).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.01(j), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a),
4.01(b) or 4.01(c), as applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.
(a) Based solely on information provided to the Trustee by the Master
Servicer and the Special Servicer pursuant to Sections 3.12, 4.02(b) and
4.02(c), the Trustee shall prepare (or cause to be prepared) and, on each
Distribution Date, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Mortgage Loan Sellers, the
Underwriters, the Rating Agencies, the Controlling Class Representative, each
Certificateholder and, to the extent that the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, each Certificate Owner a statement substantially in the form of, and
containing the information set forth in, Exhibit E-1 hereto (the "Trustee
Report"), detailing the distributions on such Distribution Date and the
performance, both in the aggregate and individually to the extent available, of
the Mortgage Loans and the Mortgaged Properties; provided that the Trustee need
not deliver to the Depositor, the Mortgage Loan Sellers, the Underwriters, the
Rating Agencies or the Controlling Class Representative any Trustee Report that
has been made available via the Trustee's Internet Website as provided below;
and provided, further, that the Trustee has no affirmative obligation to
discover the identities of Certificate Owners and need only react to Persons
claiming to be Certificate Owners in accordance with such Section 5.06.
Notwithstanding the foregoing, any delivery of such reports to Fitch shall be
made by first class mail.
On each Distribution Date, the Trustee shall provide or make available
electronically (or, upon request, by first class mail) to the Depositor, the
Mortgage Loan Sellers, the Underwriters, the Rating Agencies, the Controlling
Class Representative, each Certificateholder and each Certificate Owner to which
a Trustee Report was forwarded on such Distribution Date, a copy of the
following reports delivered to it by the Master Servicer pursuant to Section
3.12(d) since the preceding Distribution Date (or, in the case of the initial
Distribution Date, since the Closing Date): (i) the Delinquent Loan Status
Report; (ii) the Historical Loss Estimate Report; (iii) the Historical Loan
Modification Report; (iv) the REO Status Report; (v) the Watch List Report; and
(vi) the Comparative Financial Status Report. The Trustee shall provide or make
available electronically on each Distribution Date (or, upon request, by first
class mail) to the Depositor, GECA, the Rating Agencies, the Controlling Class
Representative, each Certificateholder and each Certificate Owner to which a
Trustee Report was forwarded on such Distribution Date a copy of the CSSA Loan
Periodic Update File containing information regarding each Mortgage Loan and the
CSSA Property File containing information regarding each Mortgaged Property and
REO Property as of the end of the related Collection Period. The Trustee shall
have no obligation to provide the information or reports described in this
Section 4.02(a) until it has received the requisite information or reports from
the Master Servicer, and the Trustee shall not be in default hereunder due to a
delay in providing the Certificateholder Reports caused by the Master Servicer's
failure to timely deliver any information or reports hereunder. The Trustee
Report, the CSSA Loan Periodic Update File, the CSSA Property File and the
reports referred to in the first sentence of this paragraph collectively
constitute the "Certificateholder Reports". Absent manifest error, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the
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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, the Special Servicer or
the Trustee, as applicable. None of the Trustee, the Master Servicer or the
Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Borrower, a third party or each
other.
The Trustee shall make available each month, to Certificateholders,
Certificate Owners, prospective investors and any other interested party, via
the Trustee's Internet Website all Trustee Reports and Unrestricted Servicer
Reports and, with the consent or at the direction of the Depositor, such other
information regarding the Certificates and/or the Mortgage Loans as the Trustee
may have in its possession; provided that, unless (i) the particular report or
information has been filed with the Commission pursuant to Section 8.15 or (ii)
the Depositor has notified the Trustee that DLJSC has sold the Non-Registered
Certificates to unaffiliated third parties, access to such reports and
information on the Trustee's Internet Website will be password protected to the
same extent, and limited to the same Persons, as the Restricted Servicer
Reports. The Trustee shall make the Restricted Servicer Reports available each
month, via the Trustee's Internet Website, to any Certificateholder, Certificate
Owner, any Person identified by any Certificateholder or Certificate Owner as a
prospective transferee of a Certificate or interest therein, GECA, the
Underwriters, Column, any Rating Agency, the Controlling Class Representative or
any party hereto, with the use of a password provided by the Trustee to such
person upon receipt by the Trustee from such Person of a certification
substantially in the form of Exhibit L-1 or Exhibit L-2, as applicable;
provided, however, that the Trustee shall provide such password to each party
hereto, the Controlling Class Representative, GECA, Column and each Rating
Agency without requiring such certification. In addition, the Trustee is hereby
directed and authorized to make available, as a convenience to interested
parties (and not in furtherance of the distribution of the Prospectus or the
Prospectus Supplement under the securities laws), this Agreement, the Prospectus
and the Prospectus Supplement via the Trustee's Internet Website. The Trustee
will make no representations or warranties as to the accuracy or completeness of
such documents and will assume no responsibility therefor.
The Trustee's Internet Website shall be located at "www.ctslink.com/cmbs"
or at such other address as shall be specified by the Trustee from time to time
in the Trustee Report and in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Trustee's Internet Website, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Trustee shall be entitled to rely on but shall not be responsible for
the content or accuracy of any information provided by third parties for
purposes of preparing the Trustee Report and may affix thereto any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(b) By 3:30 p.m. New York City time on the second Business Day after each
Determination Date, the Master Servicer shall deliver to the Trustee the CSSA
Loan Periodic Update File, reflecting information as of the close of business on
the last day of the Collection Period, in a mutually agreeable electronic
format. Such CSSA Loan Periodic Update File and any written information
supplemental thereto shall include such information with respect to the Mortgage
Loans that is required by the Trustee for purposes of making the calculations
and preparing the reports for which the Trustee is responsible pursuant to
Section 4.01, this Section 4.02, Section 4.05 or any other section of this
Agreement,
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as set forth in written specifications or guidelines issued by the Trustee from
time to time. Such information may be delivered by the Master Servicer to the
Trustee by telecopy or in such electronic or other form as may be reasonably
acceptable to the Trustee and the Master Servicer. The Special Servicer shall
from time to time (and, in any event, as may be reasonably required by the
Master Servicer) provide the Master Servicer with such information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
may be necessary for the Master Servicer to prepare each report and any
supplemental information to be provided by the Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) Within a reasonable period of time after the end of each calendar year,
the Trustee shall prepare, or cause to be prepared, and mail to each Person who
at any time during the calendar year was a Certificateholder (i) a statement
containing the aggregate information set forth on page 2 of Exhibit E-1 hereto
for such calendar year or applicable portion thereof during which such person
was a Certificateholder and (ii) such other customary information as the Trustee
deems necessary or desirable for Certificateholders to prepare their federal,
state and local income tax returns, including the amount of original issue
discount accrued on the Certificates, if applicable. The obligations of the
Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Master Servicer and the Special Servicer shall
promptly provide to the Depositor, the REMIC Administrator and the Trustee such
information regarding the Mortgage Loans and the Mortgaged Properties as such
party may reasonably request and that has been furnished to, or may otherwise be
in the possession of, the Master Servicer or the Special Servicer, as the case
may be.
SECTION 4.03. P&I Advances; Advances relating to the Master Servicer
Remittance Amount.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall, subject Section 4.03(c), either (i) remit from its
own funds to the Trustee 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, (ii) apply amounts held in the Collection Account
for future distribution to Certificateholders in subsequent months in discharge
of any such obligation to make P&I Advances, or (iii) make P&I Advances in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made. Any amounts held in the Collection 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 Collection Account prior to the next succeeding Master
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Servicer Remittance 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 3:30 p.m., New York City time,
on any P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the Officer's Certificate and other documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted on such date, then the Trustee shall
provide notice of such failure to the Master Servicer by facsimile transmission
as soon as possible, but in any event before 4:30 p.m., New York City time, on
such P&I Advance Date. If after such notice the Trustee does not receive the
full amount of such P&I Advances by 6:00 p.m., New York City time, on such P&I
Advance Date, then the Trustee shall (not later than 11:00 a.m., New York City
time, on the related Distribution Date) make, and if the Trustee fails to do so,
any Fiscal Agent shall (not later than 12:00 noon, New York City time, on the
related Distribution Date) make, the portion of such P&I Advances that was
required to be, but was not, made or remitted, as the case may be, by the Master
Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
in respect of any Distribution Date, subject to Section 4.03(c) below, shall
equal the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of any related Master Servicing
Fees and Workout Fees, due or deemed due, as the case may be, in respect of the
Mortgage Loans (including Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Mortgage 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 Borrower or otherwise
collected as of the close of business on the related Determination Date;
provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then the interest portion of any P&I Advance required
to be made in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall
be required to be made hereunder if such P&I Advance would, if made, constitute
a Nonrecoverable P&I Advance. The determination by the Master Servicer (or, if
applicable, the Trustee or any Fiscal Agent) 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 made by such Person in its reasonable, good
faith judgment and shall be evidenced by an Officer's Certificate delivered to
the Depositor, to the Special Servicer, to the Controlling Class Representative
and, if made by the Master Servicer, to the Trustee (on or before the related
P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis
for such determination, accompanied by a copy of an Appraisal of the related
Mortgaged Property or REO Property performed within the twelve (12) months
preceding such determination by a Qualified Appraiser, and further accompanied
by any other information, including engineers' reports, environmental surveys or
similar reports, that the Person making such determination may have obtained and
that support such determination. The Trustee and any Fiscal Agent shall be
entitled to conclusively rely on any nonrecoverability determination made by the
Master Servicer with respect to a particular P&I Advance. The Special Servicer
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shall promptly furnish any party required to make P&I Advances hereunder with
any information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as such party required to make P&I Advances may
reasonably request.
(d) The Trustee and any Fiscal Agent shall each be entitled to
reimbursement of the amount of any Master Servicer Remittance Amount advanced
thereby (together with any interest accrued thereon at the Reimbursement Rate)
from general collections on the Mortgage Loans and REO Properties on deposit in
the Collection Account, and the defaulting Master Servicer shall indemnify the
Trust for any such interest so paid to the Trustee or any Fiscal Agent out of
the Collection Account.
(e) Subject to the next sentence, the Master Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each P&I Advance made
thereby (with its own funds), and compounded monthly, for so long as such P&I
Advance is outstanding (or, if such P&I Advance was made prior to the end of any
grace period applicable to the subject delinquent Monthly Payment, for so long
as such P&I Advance is outstanding following the end of such grace period). Such
compound interest shall be payable: (i) at any time, out of Default Charges
collected on the particular Mortgage Loan or REO Mortgage Loan as to which such
P&I Advance relates; and (ii) to the extent that such Default Charges are
insufficient, but only with respect to that portion of such P&I Advance that has
been or is being reimbursed pursuant to this Agreement, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The Master Servicer shall reimburse itself, the Trustee or
any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby as
soon as practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(e) on any P&I Advance as to which the corresponding Late
Collection was received as of the related P&I Advance Date.
(f) Notwithstanding any other provision of this Agreement to the contrary,
with respect to any Mortgage Loan as to which the Master Servicer or an
Affiliate thereof owns an equity interest in the related Borrower (but only for
so long as the Master Servicer or such Affiliate owns such equity interest), if
the Master Servicer makes a P&I Advance with respect to such Mortgage Loan, it
shall be entitled to Advance Interest at the Reimbursement Rate on such P&I
Advance only to the extent of (i) any Default Interest and late payment charges
received with respect to such Mortgage Loan (net of any payment therefrom to the
Trustee or the Special Servicer in respect of interest on Advances related to
such Mortgage Loan), and (ii) any Liquidation Proceeds received with respect to
such Mortgage Loan that are in excess of the aggregate of (A) the outstanding
principal balance of such Mortgage Loan, (B) all accrued and unpaid interest on
such Mortgage Loan at the related Mortgage Rate, (C) all other related and
unreimbursed Servicing Advances, (D) any related Liquidation Expenses, (E) any
Additional Trust Fund Expenses related to such Mortgage Loan, including Advance
Interest, and (F) any Liquidation Fee payable to the Special Servicer in respect
of such Mortgage Loan. This subsection shall not limit the entitlement of the
Trustee or any Fiscal Agent to Advance Interest on any P&I Advance made by the
Trustee or such Fiscal Agent in respect of such Mortgage Loan.
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(g) With respect to any Mortgage Loan as to which the Master Servicer or an
Affiliate thereof owns an equity interest in the related Borrower (but only for
so long as the Master Servicer or such Affiliate owns such equity interest), the
Master Servicer shall be entitled to appoint another Person (which Person is not
an Affiliate of the Master Servicer) satisfactory to the Trustee to make P&I
Advances with respect to such Mortgage Loan (such Person, an "Alternate
Advancer"), provided that (i) the Master Servicer shall have given prior written
notice specifying the terms of such appointment (which shall also be
satisfactory to the Trustee) to the Special Servicer, the Trustee and the Rating
Agencies and (ii) the Trustee shall have received written confirmation from each
Rating Agency that such appointment will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates. Such Alternate Advancer shall
be entitled to receive reimbursement on any P&I Advances made by it, together
with interest thereon at the Reimbursement Rate, as and to the same extent as
the Master Servicer is entitled thereto with respect to other Mortgage Loans
(that is, without regard to subsection (f) of this Section 4.03) and the Master
Servicer shall be authorized to withdraw funds from the Collection Account (at
the time and in the manner otherwise provided in this Agreement without regard
to subsection (f) of this Section 4.03) in order to effect such reimbursement
and such payment of interest. The appointment of an Alternate Advancer shall not
relieve the Master Servicer of its ultimate responsibility to make any required
Advance, and the failure to make any required Advance by the Master Servicer or
its Alternate Advancer shall also constitute an Event of Default by the Master
Servicer hereunder.
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01(a), the
Trustee shall determine the amount, if any, by which (i) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
C, Class B-8, Class B-7, Class B-6, Class B-5, Class B-4, Class B-3, Class B-2,
Class B-1, Class A-4, Class A-3 and Class A-2 Certificates shall be reduced
sequentially, in that order, until such excess is reduced to zero; provided
that, no such Class of Certificates shall have its Class Principal Balance
reduced unless and until the Class Principal Balance of each other Class of
Certificates, if any, listed in front of it has been reduced to zero; and
provided, further, that if after the foregoing reductions, the amount described
in clause (i) of the preceding sentence still exceeds the amount described in
clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1A and Class A-1B Certificates shall be reduced on a pro rata basis
in accordance with the relative sizes of such Class Principal Balances, until
any such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(i), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest C, REMIC II Regular Interest B-8, REMIC II Regular Interest
B-7, REMIC II Regular Interest B-6, REMIC II Regular Interest B-5, REMIC II
Regular Interest B-4, REMIC II Regular Interest B-3, REMIC II Regular Interest
B-2, REMIC II Regular Interest B-1, REMIC II Regular Interest A-4, REMIC II
Regular Interest A-3 and REMIC II Regular Interest A-2 shall be reduced
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sequentially, in that order, until such excess is reduced to zero; provided
that, no such REMIC II Regular Interest shall have its Uncertificated Principal
Balance reduced unless and until the Uncertificated Principal Balance of each
other REMIC II Regular Interest, if any, listed in front of it has been reduced
to zero; and provided, further, that if after the foregoing reductions, the
amount described in clause (i) of the preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective
Uncertificated Principal Balances of REMIC II Regular Interest A-1A and REMIC II
Regular Interest A-1B shall be reduced on a pro rata basis in accordance with
the relative sizes of such Uncertificated Principal Balances, until any such
remaining excess is reduced to zero. All such reductions in the Uncertificated
Principal Balances of the respective REMIC II Regular Interests shall be deemed
to constitute allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(j),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to the extent
necessary to equal the Stated Principal Balance of the related Mortgage Loan or
REO Mortgage Loan, as the case may be (or, if applicable in cases involving the
substitution of multiple Replacement Mortgage Loans, the aggregate Stated
Principal Balance of each and every related Mortgage Loan and/or REO Mortgage
Loan, as the case may be), that will be outstanding immediately following such
Distribution Date. All such reductions in the Uncertificated Principal Balances
of the respective REMIC I Regular Interests shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information from the
Master Servicer and/or Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions to
be made pursuant to Section 4.01, the preparation of the Trustee Reports
pursuant to Section 4.02(a) and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Trustee shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement. Absent actual knowledge of an error therein, the
Trustee shall have no obligation to recompute, recalculate or otherwise verify
any information provided to it by the Master Servicer. The calculations by the
Trustee contemplated by this Section 4.05 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms attached
hereto as Exhibits A-1 through A-6; provided, however, 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 Class S, Class A, Class B-1
and Class B-2 Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Senior Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances (or, in the case of the Class S Certificates, initial Certificate
Notional Amounts) as of the Closing Date of not less than $10,000 and in any
whole dollar denomination in excess thereof. The Principal Balance Certificates
(other than the Class A-1A and Class A- 1B Certificates) will be issuable only
in denominations corresponding to initial Certificate Principal Balances as of
the Closing Date of not less than $100,000 and in any whole dollar denomination
in excess thereof. The Residual Interest Certificates and the Grantor Trust
Certificates will be issuable only in denominations representing Percentage
Interests in the related Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized officers of the Trustee shall be entitled to
all benefits under this Agreement, subject to the following sentence,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the other parties hereto, any other bank or
trust company to act as Certificate Registrar under such conditions as the
Trustee may prescribe, provided that the Trustee shall not be relieved of any of
its duties or responsibilities hereunder as Certificate Registrar by
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reason of such appointment. If the Trustee resigns or is removed in accordance
with the terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and such
request states that such Holders 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 Holders propose to
transmit, then the Trustee shall, within thirty (30) days after the receipt of
such request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to, or deliver to the
requesting Holders a copy of, the most recent list of Certificateholders held by
the Certificate Registrar (which list shall be current as of a date no earlier
than thirty (30) days prior to the Trustee's receipt of such request). Every
Certificateholder, by receiving such access, acknowledges that neither the
Certificate Registrar nor the Trustee will be held accountable in any way by
reason of the disclosure of any information as to the names and addresses of any
Certificateholder regardless of the source from which such information was
derived.
(b) No transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Non-Registered Certificate is to be made
without registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of such Certificate by the
Depositor), 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 hereto as Exhibit F-1A; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1B and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F- 2A or as Exhibit F-2B; or (iii) an Opinion
of Counsel satisfactory to the Trustee 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 or of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent 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. If any Transferee of a Non-Registered Certificate or interest therein
does not, in connection with the subject transfer, deliver to the Certificate
Registrar one of the certifications described in clause (ii) of the preceding
sentence or the Opinion of Counsel described in clause (iii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit F-2A or Exhibit F-2B
hereto are, with respect to the subject transfer, true and correct. 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 or interest
therein without registration or qualification. Any Certificateholder desiring to
effect a transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall, and does hereby agree to, indemnify the
Depositor, DLJSC, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the REMIC Administrator and the Certificate Registrar against
any liability
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that may result if such transfer, sale, pledge or other disposition is not
exempt from the registration and/or qualification requirements of the Securities
Act and any applicable state securities laws or is not made in accordance with
such federal and state laws.
(c) No transfer of a Subordinated Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of such Certificate or interest therein by the prospective Transferee
would result in a violation of Section 406 of ERISA or Section 4975 of the Code
or would result in the imposition of an excise tax under Section 4975 of the
Code. Except in connection with the initial issuance of the Subordinated
Certificates or any transfer of a Subordinated Certificate by the Depositor or,
in the case of a Book-Entry Subordinated Certificate, any transfer of such
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03(c), the Certificate Registrar shall refuse to
register the transfer of a Subordinated Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) a certification to the
effect that the purchase and continued holding of such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel (which Opinion of counsel shall not be an expense of
the Trustee, the Certificate Registrar or the Trust) which otherwise establish
to the reasonable satisfaction of the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result in
the imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G is
acceptable for purposes of the preceding sentence. If any Transferee of a
Subordinated Certificate or any interest therein does not, in connection with
the subject transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the second preceding sentence, then
such Transferee shall be deemed to have represented and warranted that either:
(i) such Transferee is not a Plan and is not directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and continued holding
of such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transactions Class Exemption
95-60.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under
clause (ii)(A) below to deliver payments to a Person other than such Person
and to have irrevocably authorized the Trustee 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 disposition. The rights of each Person acquiring any
Ownership Interest in a Residual Interest Certificate are expressly subject
to the following provisions:
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(A) Each Person holding or acquiring any Ownership Interest in a
Residual Interest Certificate shall be a Permitted Transferee and shall
promptly notify the REMIC Administrator and the Trustee of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Interest Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer of any Residual
Interest Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a "Transfer
Affidavit and Agreement"), from the proposed Transferee, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the Residual
Interest 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 Interest Certificate it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if a Responsible Officer
of either the Trustee or the Certificate Registrar has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no Transfer of
an Ownership Interest in a Residual Interest Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Interest 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 Interest
Certificate and (2) not to transfer its Ownership Interest in such Residual
Interest Certificate unless it provides to the Certificate Registrar and
the Trustee a certificate substantially in the form attached hereto as
Exhibit H-2 stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Interest Certificate, by purchasing such Ownership Interest,
agrees to give the REMIC Administrator and the Trustee written notice that
it is a "pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring
an Ownership Interest in a Residual Interest Certificate, if it is, or is
holding an Ownership Interest in a Residual Interest Certificate on behalf
of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Interest 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 Interest Certificate.
None of the Depositor, the Trustee or the Certificate Registrar shall
be under any liability to any Person for any registration
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of Transfer of a Residual Interest 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
Interest Certificate in violation of the restrictions in this Section
5.02(d), then, to the extent that retroactive restoration of the rights of
the preceding Holder of such Residual Interest Certificate as described in
clause (ii) (A) above shall be invalid, illegal or unenforceable, the
Trustee shall have the right but not the obligation, to cause the transfer
of such Residual Interest Certificate to a Permitted Transferee selected by
the Trustee on such terms as the Trustee may choose, and the Trustee shall
not be liable to any Person having an Ownership Interest in such Residual
Interest Certificate as a result of its exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such Residual
Interest Certificate in accordance with the instructions of the Trustee.
Such Permitted Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The REMIC Administrator shall make available to the IRS and to those
Persons specified by the REMIC Provisions all information furnished to it by the
other parties hereto necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual Interest Certificate to any
Person who is a Disqualified Organization, 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 Interest Certificate and (B) as a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section 1381
of the Code that holds an Ownership Interest in a Residual Interest Certificate
having as among its record holders at any time any Person which is a
Disqualified Organization, and each of the other parties hereto shall furnish to
the REMIC Administrator all information in its possession necessary for the
REMIC Administrator to discharge such obligation. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of the
REMIC Administrator 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 Trustee and the REMIC Administrator 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
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the REMIC Administrator, 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 Trustee, the REMIC Administrator or
the Trust), to the effect that doing so will not (1) cause any REMIC Pool
to cease to qualify as a REMIC or be subject to an entity-level tax caused
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by the Transfer of any Residual Interest Certificate to a Person which is
not a Permitted Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the Transfer of a
Residual Interest Certificate to a Person that is not a Permitted
Transferee.
(e) The Trust has not been registered as an investment company under the
Investment Company Act. Accordingly, no transfer of any Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-8 or Class C Certificate shall be made
to any Person other than an Institutional Accredited Investor or a Qualified
Institutional Buyer, and no transfer of any Residual Interest Certificate shall
be made to any Person other than a Qualified Institutional Buyer. If a transfer
of any such Certificate is to be made, then the Trustee shall require, in order
to assure compliance with the foregoing, that the prospective transferee of such
Certificate (or the transferor on its behalf) certify in writing that the
prospective transferee is a Qualified Institutional Buyer or, alternatively, but
solely in the case of a Class B-3, Class B-4, Class B-5, Class B-6, Class B-7,
Class B-8 or Class C Certificate, an Institutional Accredited Investor.
(f) If a Person is acquiring any Non-Registered Certificate, Subordinated
Certificate or Residual Interest Certificate as a fiduciary or agent for one or
more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
applicable foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as set forth
in Subsections (b), (c), (d) and/or (e), as appropriate, of this Section 5.02.
(g) 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 Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing 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 Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(i) 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.
(j) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
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(k) 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.
(l) The Certificate Registrar or the Trustee shall provide to each of the
other parties hereto, upon reasonable written request and at the expense of the
requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1 and Class B-2 Certificates shall, in
the case of each Class thereof, 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), 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, subject to
Section 5.02(c), 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 fully registered,
physical Certificates ("Definitive Certificates") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee, any Fiscal Agent and the Certificate Registrar may
for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depository as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders
and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
discharge properly its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository with respect to any Class of Book-Entry Certificates (or any
portion of any Class thereof), the Certificate Registrar shall notify all
affected Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of any Class of Book- Entry Certificates (or any portion of any Class
thereof) by the Depository, accompanied by registration instructions from the
Depository for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion
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thereof) to the Certificate Owners identified in such instructions. None of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator,
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 Book- Entry
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.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the reasonable 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 Pool, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of any of them may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal
Agent, the Certificate Registrar or any agent of any of them shall be affected
by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its acquisition of
an Ownership Interest in the Book-Entry Certificates to agree to comply with the
transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certificate of such Person which shall be
substantially in the form of paragraph 1 of Exhibit L-1 hereto (or such other
form as shall be reasonably acceptable to the Trustee) and shall specify the
Class and Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of the Book-Entry Certificate beneficially owned; provided,
however, that the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership
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Interest in a Book-Entry Certificate in violation of Section 5.02(c), or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depository, Depository Participants
and/or indirect participating brokerage firms for which Depository Participants
act as agents, with respect to the identity of a Certificate Owner. The Trustee
shall exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, each of the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall each keep in
full effect its existence, rights and franchises as a corporation, bank, trust
company, partnership, limited liability company, association or other legal
entity under the laws of the jurisdiction wherein it was organized, and each
shall obtain and preserve its qualification to do business as a foreign entity
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.
Each of the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case,
any Person resulting from any merger or consolidation to which the Depositor,
the Master Servicer, the Special Servicer or the REMIC Administrator shall be a
party, or any Person succeeding to the business of the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master Servicer
or the Special Servicer unless such succession will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator.
None of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator shall be under any liability to the Trust, the Trustee or
the Certificateholders for any action taken or not taken in good faith pursuant
to this Agreement or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator against any liability to the Trust, the
Trustee or the Certificateholders for the breach of a representation or warranty
made by such party herein, 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
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otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, such party's obligations or duties
hereunder. The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and any director, member, manager, officer, employee or agent of
any such party may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and any director, member, manager, officer, employee or
agent of any such party shall be indemnified and held harmless by the Trust out
of the Collection Account against any loss, liability, cost or expense
(including reasonable legal expenses) incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability, cost or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof or otherwise incidental to the performance of
obligations and duties hereunder, including, in the case of the Master Servicer
or Special Servicer, the prosecution of an enforcement action in respect of any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement); or (ii)
incurred in connection with any legal action against such party resulting from
any breach of a representation or warranty made herein, any misfeasance, bad
faith or negligence in the performance of, or reckless disregard of, obligations
or duties hereunder or any willful or negligent violation of applicable law.
None of the Depositor, the Master Servicer, the Special Servicer or the REMIC
Administrator shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, except in the case of a legal action the costs of which it
is specifically required hereunder to bear, in its opinion does not involve it
in any ultimate expense or liability; provided, however, that the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator may in its
discretion undertake any such action which it may reasonably deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust, and the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator shall be entitled to be reimbursed therefor from the
Collection Account as provided in Section 3.05(a).
SECTION 6.04. Master Servicer, Special Servicer and REMIC Administrator Not
to Resign.
The REMIC Administrator, the Master Servicer and the Special Servicer may
each 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 REMIC
Administrator, 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 REMIC
Administrator, 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 REMIC Administrator, 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 REMIC
Administrator's, the Master Servicer's or the Special Servicer's (as the case
may be) 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 6.06 or Section 7.02 hereof; provided that, if no successor REMIC
administrator, master servicer or special servicer, as applicable, shall have
been so appointed and have accepted appointment within 90 days after the REMIC
Administrator, Master Servicer or Special Servicer, as the case may be, has
given notice of such resignation, the resigning REMIC Administrator,
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Master Servicer or Special Servicer, as applicable, may petition any court of
competent jurisdiction for the appointment of a successor REMIC administrator,
master servicer or special servicer, as applicable.
In addition, the Master Servicer and the Special Servicer shall each have
the right to resign at any other time provided that (i) a willing successor
thereto (including any such successor proposed by the resigning party)
acceptable to the Depositor has been found, (ii) each of the Rating Agencies
confirms in writing that the successor's appointment will not result in an
Adverse Rating Event with respect to any Class of Rated 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, none of the Master Servicer, the Special Servicer or the REMIC
Administrator shall (except in connection with any resignation thereby permitted
pursuant to the prior paragraph or as otherwise expressly provided herein,
including the provisions of Section 3.22 and/or Section 6.02) assign or transfer
any of its rights, benefits or privileges hereunder to any other Person or
delegate to, subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by it
hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer, the Special Servicer or the REMIC Administrator are transferred to a
successor thereto, the entire amount of compensation payable to the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
that accrues pursuant hereto from and after the date of such transfer shall be
payable to such successor.
Notwithstanding the foregoing, if the same Person is acting as both REMIC
Administrator and Trustee, and such Person resigns as Trustee pursuant to
Section 8.07, then such Person shall be deemed to have also resigned as the
REMIC Administrator, and the successor Trustee shall also act as successor REMIC
Administrator or shall appoint a successor REMIC Administrator.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator.
The Master Servicer, the Special Servicer and the REMIC Administrator shall
each afford the Depositor, the Trustee, the Controlling Class Representative and
each Rating Agency, upon reasonable notice, during normal business hours access
to all records maintained by it in respect of its rights and obligations
hereunder and access to such of its officers as are responsible for such
obligations. Upon reasonable request, the Master Servicer, the Special Servicer
and the REMIC Administrator shall each furnish the Depositor, the Trustee and
each Rating Agency with its most recent 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; provided that none of the Depositor or the
Trustee may disclose the contents of such financial statements or other
information to non-affiliated third parties (other than accountants, attorneys,
financial advisors and other representatives retained to help it evaluate such
financial statements or other information), unless it is required to do so under
applicable securities laws or is otherwise compelled to do so as a matter of
law. The Master Servicer, the Special Servicer and the REMIC Administrator may
each affix to any such information described in this Section 6.05 provided by it
any disclaimer it deems appropriate in its reasonable discretion. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer,
the Special Servicer and the REMIC Administrator hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder
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or exercise the rights of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder; provided, however, that none of the Master Servicer,
the Special Servicer or the REMIC Administrator shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer, the Special Servicer or the
REMIC Administrator and is not obligated to supervise the performance of the
Master Servicer, the Special Servicer or the REMIC Administrator under this
Agreement or otherwise.
SECTION 6.06. Designation of Special Servicer by the Controlling Class.
The Holder or Holders of the Certificates representing more than 50% of the
Class Principal Balance of the Controlling Class may at any time and from time
to time designate a Person to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer. Such Holder or Holders shall so designate a Person to so serve as
successor Special Servicer by the delivery to the Trustee, the Master Servicer
and the existing Special Servicer of a written notice stating such designation.
The Trustee shall, promptly after receiving any such notice, deliver to the
Rating Agencies an executed Notice and Acknowledgment in the form attached
hereto as Exhibit I-1. The designated Person shall become the Special Servicer
on the date as of which the Trustee shall have received: (i) written
confirmation from each of the Rating Agencies that the appointment of such
Person will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; (ii) an Acknowledgment of Proposed Special Servicer in the
form attached hereto as Exhibit I-2, executed by the designated Person; and
(iii) an Opinion of Counsel (which shall not be an expense of the Trustee or the
Trust) substantially to the effect that (A) the designation of such Person to
serve as Special Servicer is in compliance with this Section 6.06, (B) the
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (C) the Acknowledgment of
Proposed Special Servicer has been duly authorized, executed and delivered by
the designated Person and (D) upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any existing Special Servicer
shall be deemed to have been terminated simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided that the terminated
Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Certificate Account of all of its accrued and
unpaid Special Servicing Fees and reimbursement from the successor Special
Servicer of all outstanding Servicing Advances made by the terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor Special Servicer shall be deemed to have
made such Servicing Advances at the same time that the terminated Special
Servicer had actually made them); and provided, further, that the terminated
Special Servicer shall continue to be obligated to pay and entitled to receive
all other amounts accrued or owing by or to it under this Agreement on or prior
to the effective date of such termination, and it and its directors, managers,
members, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two (2) Business Days to the replacement Special Servicer for
administration by it of all cash amounts that at the time are or should have
been credited by the Special Servicer to the REO Account or any Servicing
Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property. If the termination of the Special Servicer was without cause, the
reasonable out-of-pocket costs and expenses
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of any such transfer shall in no event be paid out of the Trust Fund, and
instead shall be paid by the successor Special Servicer or the Holders of the
Controlling Class that voted to remove the Special Servicer, as such parties may
agree. If the Controlling Class of Certificates are Book-Entry Certificates,
then the rights set forth in this Section 6.06 with respect to replacing the
Special Servicer may be exercised by the related Certificate Owners holding
beneficial ownership of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner of a
Certificate.
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
any action (including for this purpose, omitting to take a particular action)
that is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's reasonable, good faith judgment,
violate the Servicing Standard, but that, if taken, might nonetheless, in the
Master Servicer's or the Special Servicer's reasonable, good faith judgment, be
considered by other Persons to violate the Servicing Standard, then the Master
Servicer or the Special Servicer may (but need not) seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (a) states that it is delivered pursuant to this Section 6.07, (b)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Master Servicer or the Special Servicer, as the case may be, or by
an Affiliate thereof and (c) describes in reasonable detail the action that the
Master Servicer or the Special Servicer, as the case may be, proposes to take.
The Trustee, upon receipt of such notice, shall forward it to the
Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with a request
for approval by the Certificateholders of each such proposed action. 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, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to reimbursement from the Master Servicer or the Special Servicer,
as applicable, for the reasonable expenses of the Trustee incurred pursuant to
this paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, but rather
in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the Collection
Account any amount required to be so deposited under this Agreement, which
failure continues unremedied for one Business Day following the date on
which such deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or the Collection Account, or to remit to the Master Servicer for
deposit into the Collection Account, any amount required to be so deposited
or remitted under this Agreement, which failure continues unremedied for
one Business Day following the date on which such deposit or remittance, as
the case may be, was first required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date or, on any Master
Servicer Remittance Date, the full amount of the Master Servicer Remittance
Amount required to be remitted on such date, which failure continues
unremedied until 5:00 p.m. (New York City time) on such P&I Advance Date or
Master Servicer Remittance Date, as the case may be; provided however, that
the failure to make a P&I Advance one time in any 12 month period which is
corrected by 10:00 a.m. on the related Distribution Date shall not
constitute an Event of Default; or
(iv) 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 three (3) Business Days following the date
on which notice shall have been given to the Master Servicer by the Trustee
as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request the
Master Servicer to make) any Servicing Advance required to be made by it
hereunder, which Servicing Advance remains unmade for a period of three (3)
Business Days following the date on which notice has been given to the
Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
failure continues unremedied for a period of thirty (30) days (or, in the
case of payment of insurance premiums, for a period of fifteen (15) days)
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be, (with a copy to each
other party hereto) by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
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(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements on the part of the REMIC Administrator contained in this
Agreement which continues unremedied for a period of thirty (30) days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the REMIC Administrator by any other
party hereto, or to the REMIC Administrator (with a copy to each other
party hereto) by the Holders of Certificates entitled to at least 25% of
the Voting Rights; or
(viii) any breach on the part of the Master Servicer 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 sixty
(60) days after the date on which notice of such breach, requiring the same
to be remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be, (with a copy to each
other party hereto) by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
(ix) any breach on the part of the REMIC Administrator 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 sixty (60) days after the date
on which notice of such breach, requiring the same to be remedied, shall
have been given to the REMIC Administrator by any other party hereto or to
the REMIC Administrator (with a copy to each other party hereto) by the
Holders of Certificates entitled to at least 25% of the Voting Rights; or
(x) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of sixty (60) days; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xii) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action in furtherance of the
foregoing; or
(xiii) either (A) the Trustee shall have received notice from either
of the Rating Agencies to the effect that, or the Trustee shall otherwise
have actual knowledge (based on a written publication or notification by
such Rating Agency) that, the continuation of the Master Servicer or the
Special Servicer in such capacity would result in a qualification,
downgrade or withdrawal of any rating assigned thereby to any Class of
Certificates or (B) one or more ratings assigned by either
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Rating Agency to the Certificates shall have been qualified as a result of
the Master Servicer or Special Servicer, as the case may be, acting in such
capacity; or
(xiv) one or more ratings assigned by either Rating Agency to the
Certificates shall have been downgraded or withdrawn as a result of the
Master Servicer or Special Servicer, as the case may be, acting in such
capacity; or
(xv) the Master Servicer shall fail to be rated at least "CMS3" (or
any equivalent successor rating) by Fitch or shall cease to be "approved"
by Moody's, in either case in connection with acting as a master servicer
for pools of mortgage loans similar to the Mortgage Pool, and the failure
to be so rated or approved shall continue unremedied for a period of thirty
(30) days (or, as confirmed to the Trustee in writing by each Rating
Agency, for such longer period (not to exceed ninety (90) days) as the
Master Servicer may continue in such capacity without causing an Adverse
Rating Event); or
(xvi) the Special Servicer shall fail to be rated at least "CSS3"(or
any equivalent successor rating) by Fitch or shall cease to be "approved"
by Moody's, in either case in connection with acting as a special servicer
for pools of mortgage loans similar to the Mortgage Pool, and the failure
to be so rated or approved shall continue unremedied for a period of thirty
(30) days (or, as confirmed to the Trustee in writing by each Rating
Agency, for such longer period (not to exceed ninety (90) days) as the
Special Servicer may continue in such capacity without causing an Adverse
Rating Event).
When a single entity acts as Master Servicer, Special Servicer and
REMIC Administrator, or in any two of the foregoing capacities, an Event of
Default (other than an event described in clauses (xiii) - (xvi) above) in
one capacity shall constitute an Event of Default in each such capacity.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of the Holders of
Certificates entitled to not less than 25% of the Voting Rights or if the
relevant Event of Default is one described in any of clauses (iii) and (x)
through (xvi) of Section 7.01(a), the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (x) through (xii) of Section
7.01(a)), terminate, by notice in writing to the Defaulting Party (with a copy
of such notice to each other party hereto), all of the rights and obligations
(accruing from and after such notice) of the Defaulting Party under this
Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Each of the Master
Servicer and the Special Servicer agrees that, if it is terminated pursuant to
this Section 7.01(b), it shall promptly (and in any event no later than ten (10)
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee with all documents and records 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 otherwise cooperate with the Trustee in
effecting the termination of the Master Servicer's or
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Special Servicer's, as the case may be, responsibilities and rights hereunder,
including the transfer within two (2) Business Days to the Trustee for
administration by it of all cash amounts that at the time are or should have
been credited by the Master Servicer to the Collection Account, the Distribution
Account or any Servicing Account or Reserve Account (if it is the Defaulting
Party) or by the Special Servicer to the REO Account, the Collection Account or
any Servicing Account or Reserve Account (if it 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 obligated to pay and entitled to receive all amounts accrued or owing by or
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Any costs or expenses (including
those of any other party hereto) incurred in connection with any actions to be
taken by the Master Servicer or Special Servicer pursuant to this paragraph
shall be borne by the Master Servicer or Special Servicer, as the case may be
(and, in the case of the Trustee's costs and expenses, if not paid within a
reasonable time, shall be borne by the Trust out of the Collection Account).
(c) In the event the initial Master Servicer is terminated solely due to an
Event of Default under Section 7.01(a)(xiii) or Section 7.01(a)(xv), and if the
terminated initial Master Servicer delivers to the Trustee proposed bid
materials within five (5) Business Days after such termination, the Trustee
shall, within the next five (5) Business Days, using such bid materials, solicit
good faith bids for the rights to master service the Mortgage Loans under this
Agreement from three (3) Qualified Bidders (as defined below) or, if three (3)
Qualified Bidders cannot be located, then from as many Persons as the Trustee
can determine are Qualified Bidders. The Trustee shall have no obligation to
review and shall have no liability or responsibility for the information in the
bid materials, and shall be entitled to include a disclaimer to such effect with
such bid materials. 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 shall agree to be bound by the terms hereof,
within thirty (30) days after the termination of the initial Master Servicer.
The Trustee shall solicit bids (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Mortgage Loans pursuant to the terms of the respective Sub-Servicing Agreements
and entering 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 of 0.028% per annum per Mortgage Loan serviced (each, a
"Servicing Retained Bid") and (ii) on the basis of terminating each Sub-
Servicing Agreement and Sub-Servicer and having no obligation to enter into a
Sub-Servicing Agreement with the terminated Master Servicer (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 thirty (30)
days after the termination of the initial Master Servicer.
Upon the assignment and acceptance of the master servicing rights hereunder
to and by the Successful Bidder, including the transfer of the servicing of the
Mortgage Loans, the Trustee shall remit or cause to be remitted (i) if the
successful bid was a Servicing Retained Bid, to the terminated initial Master
Servicer the amount of such cash bid received from the Successful Bidder (net of
expenses in connection with obtaining such bid, including, without limitation,
reasonable attorneys' fees, and out-of-pocket expenses incurred in connection
with transferring the servicing of the Mortgage Loans) and (ii) if the
successful bid
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was a Servicing Released Bid, to the terminated initial Master Servicer and each
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement as successor
Master Servicer within thirty (30) days after the termination of the initial
Master Servicer or no Successful Bidder was identified within such thirty (30)
day period, the terminated initial Master Servicer shall reimburse the Trustee
for all 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) and may select a successor Master Servicer of its choice and
pursuant to the terms hereof.
A "Qualified Bidder" will be any prospective Master Servicer candidate
reasonably acceptable to the Depositor, which candidate would be eligible to act
as Master Servicer hereunder without causing an Adverse Rating Event.
(d) If any Event of Default with respect to the REMIC Administrator shall
occur and be continuing, then, and in each and every such case, so long as the
Event of Default shall not have been remedied, the Depositor or the Trustee (or,
if the Trustee is also the REMIC Administrator, the Master Servicer) may, and at
the written direction of the Holders of Certificates entitled to not less than
25% of the Voting Rights, the Trustee (or, if the Trustee is also the REMIC
Administrator, the Master Servicer) shall, terminate, by notice in writing to
the REMIC Administrator (with a copy to each of the other parties hereto), all
of the rights and obligations of the REMIC Administrator under this Agreement.
From and after the receipt by the REMIC Administrator of such written notice
(or, if the Trustee is also the REMIC Administrator, from and after such time as
another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The REMIC Administrator agrees promptly
(and in any event no later than ten (10) Business Days subsequent to its receipt
of the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated to pay and entitled to receive all amounts accrued or owing by
or to it under this Agreement on or prior to the date of such termination, and
it and its directors, managers, members, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any costs or expenses (including those of any other party hereto)
incurred in connection with any actions to be taken by the REMIC Administrator
pursuant to this paragraph shall be borne by the REMIC Administrator.
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SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or the
REMIC Administrator resigns pursuant to the first paragraph of Section 6.04 or
receives a notice of termination pursuant to Section 7.01, the Trustee shall be
the successor in all respects to the Master Servicer, the Special Servicer or
(unless it had also been acting as such) the REMIC Administrator, as the case
may be, in its capacity as such under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, by the terms and provisions hereof, including, if the Master Servicer is
the resigning or terminated party, the Master Servicer's obligation to make P&I
Advances; provided, however, that any failure to perform such duties or
responsibilities caused by the Master Servicer's, the Special Servicer's or the
REMIC Administrator's, as the case may be, failure to cooperate or to provide
information or monies as required by Section 7.01 shall not be considered a
default by the Trustee hereunder; and provided, further, that, in the case of a
resigning or terminated Special Servicer, the Trustee shall cease to act as
successor if an alternative successor is appointed pursuant to Section 6.06;
and, provided, further, that in the case of a terminated Master Servicer, the
Trustee shall cease to act as successor if an alternative successor is appointed
pursuant to Section 7.01(c). Neither the Trustee nor any other successor shall
be liable for any of the representations and warranties of the resigning or
terminated party or for any losses incurred by the resigning or terminated party
pursuant to Section 3.06 hereunder nor shall the Trustee nor any other successor
be required to purchase any Mortgage Loan hereunder. As compensation therefor,
the Trustee shall be entitled to all fees and other compensation which the
resigning or terminated party would have been entitled to for future services
rendered if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, if it is unwilling to so act, the Trustee may (and,
if it is unable to so act, or if the Master Servicer or the Special Servicer is
the resigning or terminated party and the Trustee is not approved as an
acceptable master servicer or special servicer, as the case may be, by each
Rating Agency, or if the REMIC Administrator is the resigning or terminated
party and the Trustee had been acting in such capacity, or if the Holders of
Certificates entitled to a majority of all the Voting Rights so request in
writing, the Trustee shall, subject to Section 6.06 or Section 7.01(c), as
applicable) promptly appoint, or petition a court of competent jurisdiction to
appoint, any established and qualified institution as the successor to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided, however, that such
appointment does not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by each Rating
Agency). No appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
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SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special Servicer or
the REMIC Administrator pursuant to Section 6.04, any termination of the Master
Servicer, the Special Servicer or the REMIC Administrator pursuant to Section
7.01, any appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.06, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) sixty (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 (5) days after a Responsible
Officer of the Trustee has actual knowledge of the occurrence of such an event,
the Trustee shall transmit by mail to the Depositor and all Certificateholders
notice of such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xiii), clause (xiv)
clause (xv) or clause (xvi) 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 the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust, to take all
actions now or hereafter existing at law, in equity or by statute to enforce its
rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), the Trustee shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement.
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may be
specifically provided for hereunder) of the Voting Rights relating to the
time, method and place of conducting
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any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(iv) The Trustee shall not be required to take action with respect to,
or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xiii) or the
Master Servicer's failure to deliver any monies, including P&I Advances, or
to provide any report, certificate or statement, to the Trustee when
required pursuant to this Agreement) unless a Responsible Officer of the
Trustee shall have received written notice or otherwise have actual
knowledge thereof. Otherwise, the Trustee may conclusively assume that
there is no such default or Event of Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty, except as expressly provided in Section 2.01(c) or Section 2.01(e) or
in its capacity as successor Master Servicer or successor Special Servicer,
(A) to cause any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to cause the maintenance of
any such recording or filing or depositing or to any rerecording, refiling
or redepositing of any thereof, (B) to cause the maintenance of any
insurance, and (C) to confirm or verify the contents of any reports or
certificates of the Master Servicer or Special Servicer delivered to the
Trustee pursuant to this Agreement reasonably believed by the Trustee to be
genuine and without error and to have been signed or presented by the
proper party or parties.
(vi) For as long as the Person that serves as Trustee hereunder also
serves as Custodian, Certificate Registrar and/or REMIC Administrator, the
protections, immunities and indemnities afforded to the Trustee hereunder
shall also be afforded to such Person in its capacity as Custodian,
Certificate Registrar and/or REMIC Administrator, as the case may be.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without error
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, unless (in the Trustee's
reasonable opinion) such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall not
be required to expend or
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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 waived or 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;
(iv) neither the Trustee nor any Fiscal Agent appointed thereby 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;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(vi) except as contemplated by Section 8.06 and/or Section 8.14, the
Trustee shall not be required to give any bond or surety in respect of the
execution of the trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in it
by this Agreement or perform any of its duties hereunder either directly or
by or through agents or attorneys-in-fact, provided that the use of agents
or attorneys-in-fact shall not be deemed to relieve the Trustee of any of
its duties and obligations hereunder (except as expressly set forth
herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby
shall be responsible for any act or omission of the Master Servicer, the
Special Servicer or the REMIC Administrator (unless the Trustee is acting
as Master Servicer, Special Servicer or REMIC Administrator, as the case
may be) or of the Depositor.
(ix) 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 or record ownership of Certificates in
the Certificate Register and to examine the same to determine substantial
compliance with the express requirements of this Agreement; and 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
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violation of applicable restrictions except for its failure to perform its
express duties in connection with changes in registration or record
ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal 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, and the representations and warranties of, the Trustee
and/or any Fiscal Agent in Article II, and the signature of the Trustee set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal 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, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator (in each case, unless the Trustee is acting in such
capacity). Neither the Trustee nor any Fiscal 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, the Special Servicer or the REMIC Administrator (in each case, unless
the Trustee is acting in such capacity), and accepted by the Trustee or such
Fiscal Agent, as the case may be, in good faith, pursuant to this Agreement.
Neither the Trustee nor any Fiscal Agent shall be responsible for the legality
or validity of this Agreement (other than insofar as it relates to the
obligations of the Trustee or such Fiscal Agent, as the case may be, hereunder)
or the validity, priority, perfection or sufficiency of any security, lien or
security interest granted to it hereunder or the filing of any financing
statements or continuation statements, except to the extent set forth in Section
2.01(c) and Section 2.01(e) or to the extent the Trustee is acting as Master
Servicer or Special Servicer. The Trustee shall not be required to record this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal Agent or
any Affiliate of either of them may become the owner or pledgee of Certificates
with (except as otherwise provided in the definition of "Certificateholder") the
same rights it would have if it were not the Trustee, such Fiscal Agent or an
Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee, REMIC Administrator and Fiscal Agent.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall accrue during each calendar month, commencing with March
1999, at the Trustee's Fee Rate on a principal amount
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equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan
immediately following the Distribution Date in such calendar month (or, in the
case of March 1999, on a principal amount equal to the Cut-off Date Balance of
the particular Mortgage Loan), whether or not interest is actually collected on
each Mortgage Loan and REO Mortgage Loan. With respect to each Mortgage Loan and
REO Mortgage Loan, the Trustee's Fee shall accrue from time to time on a 30/360
Basis. The Trustee's Fees (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) shall constitute
the Trustee's sole compensation for such services to be rendered by it.
(b) The Trustee and any affiliate, director, officer, employee or agent of
the Trustee shall be entitled to be indemnified and held harmless out of Trust
Fund for and against any loss, liability, claim or expense (including 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 Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Master Servicer or Special
Servicer, as the case may be) or any act or omission of the Trustee relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder, if (but only if) such loss, liability, claim or expense constitutes
an "unanticipated expense" within the meaning of Treasury regulation Section
1.860G-1(b)(3)(ii); provided, however, that neither the Trustee nor any of the
other above specified Persons shall be entitled to indemnification pursuant to
this Section 8.05(b) for (1) allocable overhead, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (2) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (3)
any loss, liability, claim or expense incurred by reason of any breach on the
part of the Trustee of any of its representations, warranties or covenants
contained herein or any willful misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, the Trustee's obligations and duties
hereunder.
(c) Each of the Master Servicer and the Special Servicer shall indemnify
the Trustee, any Fiscal Agent and the REMIC Administrator for and hold each of
them harmless against any loss, liability, claim or expense that is a result of
the Master Servicer's or the Special Servicer's, as the case may be, negligent
acts or omissions in connection with this Agreement, including the negligent use
by the Master Servicer or the Special Servicer, as the case may be, of any
powers of attorney delivered to it by the Trustee pursuant to the provisions
hereof and the Mortgage Loans serviced by the Master Servicer or the Special
Servicer, as the case may be; provided, however, that, if the Trustee has been
reimbursed for such loss, liability, claim or expense pursuant to Section
8.05(b), any Fiscal Agent has been reimbursed for such loss, liability, claim or
expense pursuant to Section 8.13, or the REMIC Administrator has been reimbursed
for such loss, liability, claim or expense pursuant to Section 6.03, then the
indemnity in favor of such Person provided for in this Section 8.05(c) with
respect to such loss, liability, claim or expense shall be for the benefit of
the Trust.
(d) Each of the Trustee, any Fiscal Agent and the REMIC Administrator shall
indemnify the Master Servicer and the Special Servicer for and hold each of them
harmless against any loss, liability, claim or expense that is a result of the
Trustee's, such Fiscal Agent's or the REMIC Administrator's, as the case may be,
negligent acts or omissions in connection with this Agreement; provided,
however, that if the Master Servicer or the Special Servicer has been reimbursed
for such loss, liability, claim or expense pursuant to Section 6.03, then the
indemnity in favor of such Person provided for in this Section 8.05(d) with
respect to such loss, liability, claim or expense shall be for the benefit of
the Trust.
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(e) This Section 8.05 shall survive the termination of this Agreement or
the resignation or removal of the Trustee, any Fiscal Agent, the REMIC
Administrator, the Master Servicer and the Special Servicer as regards rights
and obligations prior to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank, trust
company or association 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 $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation, bank, trust company or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
bank, trust company or association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
addition, the Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act. Furthermore, the Trustee shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)); provided that the Trustee shall not cease to be
eligible to serve as such based on a failure to satisfy such rating requirements
so long as either: (i) the Trustee maintains a long-term unsecured debt rating
of no less than "Baa2" from Moody's and "BBB" from Fitch (or, in the case of
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee and the Depositor by such Rating Agency)) and a Fiscal Agent
meeting the requirements of Section 8.13 has been appointed by the Trustee and
is then currently serving in such capacity; or (ii) the Trustee maintains a
long-term unsecured debt rating of no less than "A1" from Moody's and "A+" from
Fitch (or, in the case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)) and an Advance Security Arrangement meeting the requirements of
Section 8.14 has been established by the Trustee and is then currently being
maintained. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
corporation, bank, trust company or association serving as Trustee may have
normal banking and trust relationships with the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the REMIC Administrator and
their respective Affiliates; provided, however, that none of (i) the Depositor,
(ii) any Person involved in the organization or operation of the Depositor or
the Trust, (iii) either Mortgage Loan Seller or (iv) any Affiliate of any of
them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and all the
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee meeting the eligibility requirements
of Section 8.06 by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within
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thirty (30) days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten (10) Business Days, the
Master Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the other parties hereto and to the
Certificateholders by the Depositor (or the Master Servicer, as the case may
be).
(c) The Holders of Certificates entitled to at least a majority of the
Voting Rights (or, if such removal is in connection with the Trustee's and any
Fiscal Agent's failure to make any required Advance, 25% of the Voting Rights)
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee so removed and
one complete set to the successor so appointed. A copy of such instrument shall
be delivered to the other parties hereto and to the remaining Certificateholders
by the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the Trustee nor any
Fiscal Agent appointed by it has a long-term unsecured debt rating of at least
"Aa3" from Moody's and "AA" from Fitch, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor Trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates. Notwithstanding anything herein to the contrary, if any Person is
acting as both Trustee and REMIC Administrator, then any resignation or removal
of such Person as the Trustee shall be accompanied by the resignation or removal
of such Person as REMIC Administrator, and the successor trustee shall serve as
successor REMIC administrator as well.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and the predecessor
trustee shall execute
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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.
(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, 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 fifteen (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, 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.
(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
when acting as Master Servicer, Special Servicer or REMIC Administrator
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
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(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at the
Trustee's own expense one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee; provided that if the Custodian is an
Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
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, shall not be the Depositor, either Mortgage
Loan Seller or any Affiliate of the Depositor or either Mortgage Loan Seller,
and shall have in place a fidelity bond and errors and omissions policy, each in
such form and amount as is customarily required of custodians acting on behalf
of FHLMC or FNMA. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative and each
Rating Agency and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to any documentation regarding the Mortgage Loans or
the other assets of the Trust Fund that are in its possession or within its
control. Such access shall be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
Trustee designated by it.
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(b) The Trustee shall maintain at its offices and, upon reasonable prior
written request and during normal business hours, shall make available for
review by the Depositor, the Underwriters, the Mortgage Loan Sellers, the Rating
Agencies, the Controlling Class Representative and, subject to the succeeding
paragraph, any Certificateholder, Certificate Owner or Person identified to the
Trustee as a prospective Transferee of a Certificate or an interest therein,
originals and/or copies of the following items (to the extent such items were
prepared by or delivered to the Trustee): (i) the Prospectus, the Memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub- Servicing Agreement delivered to
the Trustee since the Closing Date and any amendments hereto or thereto; (iii)
all Trustee Reports and other Certificateholder Reports delivered to
Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all
Annual Performance Certifications delivered by the Master Servicer and the
Special Servicer, respectively, to the Trustee since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by the Master Servicer and
the Special Servicer, respectively, to the Trustee since the Closing Date; (vi)
the most recent inspection report prepared by the Master Servicer or the Special
Servicer and delivered to the Trustee in respect of each Mortgaged Property
pursuant to Section 3.12(a); (vii) the most recent quarterly and annual
operating statement and rent roll of each related Mortgaged Property and
financial statements of the related Borrower collected by the Master Servicer or
the Special Servicer and delivered to the Trustee pursuant to Section 3.12(b);
(viii) any and all notices and reports delivered to the Trustee with respect to
any Mortgaged Property as to which the environmental testing contemplated by
Section 3.09(c) revealed that neither of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was satisfied; (ix) all Unrestricted
Servicer Reports and Restricted Servicer Reports delivered to the Trustee since
the Closing Date pursuant to Sections 4.02(b); (x) each of the Mortgage Files,
including any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into or consented to by the Master Servicer or the Special
Servicer and delivered to the Trustee pursuant to Section 3.20; (xi) the most
recent Appraisal for each Mortgage Loan and REO Property that has been delivered
to the Trustee (all Appraisals of Mortgaged Properties and/or REO Properties
shall be delivered to the Trustee by the Master Servicer or Special Servicer, as
applicable, promptly following their having been obtained or formulated); (xii)
any Asset Status Reports delivered to the Trustee pursuant to Section 3.24 since
the Closing Date; and (xiii) any and all Officer's Certificates and other
evidence delivered to or by the Trustee to support its, the Master Servicer's,
the Special Servicer's or any Fiscal Agent's, as the case may be, determination
that any Advance was (or, if made, would be) a Nonrecoverable Advance. The
Trustee shall provide copies of any and all of the foregoing items upon request
of any of the parties set forth in the previous sentence; however, except in the
case of the Rating Agencies, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
copies.
In connection with providing access to or copies of the items described in
the preceding paragraph pursuant to this Section 8.12(b), the Trustee shall
require: (a) in the case of Certificate Owners, a written confirmation executed
by the requesting Person substantially in the form of Exhibit L-1 hereto (or
such other form as may be reasonably acceptable to the Trustee) generally to the
effect that such Person is 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 may provide such information to
its auditors, legal counsel and regulators and to any other Person that holds or
is contemplating the purchase of any Certificate or interest therein (provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential)); and (b) in the case of a prospective purchaser of a Certificate
or an interest therein, confirmation executed by the requesting Person
substantially in the form of Exhibit L-2 hereto (or such other form as may be
reasonably acceptable to the Trustee) generally to the effect that such Person
is a prospective purchaser of a Certificate
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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, 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 any such information obtained
by it to its auditors, legal counsel and regulators and 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)). Notwithstanding the foregoing, no Certificateholder, Certificate
Owner or prospective Certificateholder or Certificate Owner need keep
confidential any information received from the Trustee pursuant to this Section
8.12(b) that has previously been filed with the Commission, and the Trustee
shall not require either of the certifications contemplated by the second
preceding sentence in connection with providing any information pursuant to this
Section 8.12(b) that has previously been filed with the Commission.
(c) Neither the Trustee nor the Master Servicer shall be liable for
providing or disseminating information in accordance with the terms of this
Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Moody's and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated as least "Aa3" from Moody's and "AA" from
Fitch, written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon execution and delivery of the related Fiscal Agent Agreement, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions, that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
Person that acts as Fiscal Agent shall, for so long as it so acts, be deemed a
party to this Agreement for all purposes hereof. Pursuant to the related Fiscal
Agent Agreement, each Fiscal Agent, if any, shall make representations and
warranties with respect to itself that are comparable to those made by the
Trustee pursuant to Section 2.07. Notwithstanding anything contained in this
Agreement to the contrary, any Fiscal Agent shall be entitled to all limitations
on liability, rights of reimbursement and indemnities to which the Trustee is
entitled hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it
were the Trustee.
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(b) To the extent that the Trustee is required, pursuant to the terms of
this Agreement, to make any Advance, whether as successor Master Servicer or
otherwise, and has failed to do so in accordance with the terms hereof, the
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the contrary,
any Fiscal Agent shall be entitled to all limitations on liability, rights of
reimbursement and indemnities to which the Trustee is entitled hereunder
(including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the Trustee,
except that all fees and expenses of any Fiscal Agent (other than interest owed
to such Fiscal Agent in respect of unreimbursed Advances) incurred by such
Fiscal Agent in connection with the transactions contemplated by this Agreement
shall be borne by the Trustee, and neither the Trustee nor such Fiscal Agent
shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.13 or
otherwise pursuant to this Agreement shall exist only for so long as the Trustee
that appointed it shall act as Trustee hereunder. Any Fiscal Agent may resign or
be removed by the Trustee only if and when the existence of such Fiscal Agent is
no longer necessary for such Trustee to satisfy the eligibility requirements of
Section 8.06; provided that any Fiscal Agent shall be deemed to have resigned at
such time as the Trustee that appointed it resigns or is removed as Trustee
hereunder (in which case the responsibility for appointing a successor Fiscal
Agent in accordance with this Section 8.13(a) shall belong to the successor
Trustee insofar as such appointment is necessary for such successor Trustee to
satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
SECTION 8.14 Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating requirements
of Section 8.06, the Trustee may, at is own expense with the approval of the
Depositor, arrange for the pledging of collateral, the establishment of a
reserve fund or the delivery of a letter of credit, surety bond or other
comparable instrument or for any other security or financial arrangement (any or
all of the foregoing, individually and collectively, an "Advance Security
Arrangement") for purposes of supporting its back-up advancing obligations
hereunder; provided that any Advance Security Arrangement shall be in such form
and amount, and shall be maintained in such manner, as (i) would permit the
Trustee to act in such capacity without an Adverse Rating Event in respect of
any Class of Rated Certificates (as confirmed in writing to the Trustee and the
Depositor by each Rating Agency) and (ii) would not result in an Adverse REMIC
Event (as evidenced by an Opinion of Counsel addressed and delivered to the
Trustee, the Depositor and the REMIC Administrator). The Trustee may terminate
any Advance Security Arrangement established by it only if and when (i) the
existence of such Advance Security Arrangement is no longer necessary for the
Trustee to satisfy the eligibility requirements of Section 8.06 or (ii) when
such Trustee resigns or is removed as Trustee hereunder.
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SECTION 8.15. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 1999 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depository) by at least 300 Holders and/or Depository
Participants having accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act, the
rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and properly
file with the Commission monthly, with respect to the Trust, a Current
Report on Form 8-K with copies of the Trustee Reports and the Unrestricted
Servicer Reports attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify the
Depositor of the occurrence or existence of any of the matters identified
in Section 11.09(a) and/or Section 8.15(b) (in each case to the extent that
a Responsible Officer of the Trustee has actual knowledge thereof), (B)
cooperate with the Depositor in obtaining all necessary information in
order to enable the Depositor to prepare a Current Report on Form 8-K
reporting any such matter in accordance with the Exchange Act, the rules
and regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission, and (C) execute and promptly file with the
Commission any such Current Report on Form 8-K prepared by or on behalf of
the Depositor and delivered to the Trustee; and
(iii) within ninety (90) days following the end of such fiscal year,
prepare, execute and properly file with the Commission, with respect to the
Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the EDGAR system and shall not have any
responsibility to convert any such items (other than those generated by it) to
such format and (y) the Depositor shall be responsible for preparing, executing
and filing (via the EDGAR system within fifteen (15) days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required (or readily
convertible into the format required) for electronic filing via the EDGAR system
any and all items (including, in the case of the Master Servicer and the Special
Servicer, Unrestricted Servicer Reports) contemplated to be filed with the
Commission pursuant to this Section 8.15(a).
(b) At all times during the Trust's fiscal year 1999 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depository) by at least 300 Holders and/or Depository
Participants having accounts with the Depository, at all times during such other
fiscal year), the Trustee shall monitor for and promptly notify the Depositor of
the occurrence or existence of any of the following matters of which a
Responsible Officer of the Trustee has actual knowledge:
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(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan or
an REO Property, which acquisition or disposition has not otherwise been
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect of
or pertaining to the Trust or any party to this Agreement, or any actions
by or on behalf of the Trust or any party to this Agreement indicating its
bankruptcy, insolvency or inability to pay its obligations; and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports filed
with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust (other than
fiscal year 1999), the Registered Certificates are held (directly or, in the
case of Registered Certificates held in book-entry form, through the Depository)
by less than 300 Holders and/or Depository Participants having accounts with the
Depository, the Trustee shall, in accordance with the Exchange Act and the rules
and regulations promulgated thereunder, timely file a Form 15 with respect to
the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
Subject to Section 9.02, the Trust and the respective obligations and
responsibilities under this Agreement of the parties hereto (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Master Servicer,
the Special Servicer or the Majority Controlling Class Certificateholder of all
Mortgage Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Mortgage
Loan(s)), plus (B) the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by a Qualified Appraiser selected
by the Master Servicer and approved by the Trustee, minus (C) if the purchaser
is the Master Servicer or the Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any unpaid Advance
Interest in respect of such unreimbursed Advances and any unpaid servicing
compensation payable to such Person (which items shall be deemed to have been
paid or reimbursed to the Master Servicer or the Special Servicer, as the case
may be, in connection with such purchase) and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Trust Fund; provided, however, that in no event
shall the Trust continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador of
the United States to the Court of St. James, living on the date hereof.
The Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, in that order of preference, may at its option elect to
purchase all the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto (and, in the case of an election by the
Master Servicer or Special Servicer, to the Holders of the Controlling Class) no
later than sixty (60) days prior to the anticipated date of purchase; provided,
however, that the aggregate Stated Principal Balance of the Mortgage Pool at the
time of such election is less than 1.0% of the Initial Pool Balance; and
provided, further, that within thirty (30) days after written notice of such
election is so given, no Person with a higher right of priority to make such an
election does so. No Prepayment Premiums or Yield Maintenance Charges will be
payable in connection with such a purchase. If the Trust is to be terminated in
connection with the purchase of all the Mortgage Loans and each REO Property
remaining in the Trust Fund by the Master Servicer, the Special Servicer or the
Majority Controlling Class Certificateholder, such Person(s) shall deliver to
the Master Servicer for deposit (or, if the Master Servicer is the purchaser, it
shall deposit) in the Collection Account (after the Determination Date, and
prior to the Master Servicer Remittance Date, relating to the anticipated Final
Distribution Date) an amount in immediately available funds equal to the
Termination Price and shall reimburse all of the parties hereto (other than
itself, if applicable) for all reasonable out-of-pocket costs and expenses
incurred by such parties in connection with such purchase. On the Master
Servicer Remittance Date for the Final Distribution Date, the Master Servicer
shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Master Servicer Remittance Date from the Collection
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Collection Account that would otherwise be held
for future distribution. Upon confirmation that the
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deposit of the Termination Price has been made to the Collection Account and the
reimbursement contemplated by the second preceding sentence has been made to the
parties hereto, the Trustee shall release or cause to be released to the
purchasing party (or its designee) the Mortgage Files for the remaining Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the purchasing party as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the purchasing party (or
its designee).
Notice of any termination shall be given promptly by the Trustee by letter
to Certificateholders mailed (x) if such notice is given in connection with the
purchase of all the Mortgage Loans and each REO Property remaining in the Trust
Fund by the Master Servicer, the Special Servicer or the Majority Controlling
Class Certificateholder, 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 and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates 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
office or agency of the Trustee therein designated. The Trustee shall give such
notice to the other parties hereto 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 Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts on
deposit in the Distribution Account that is allocable to payments on the
relevant Class in accordance with Sections 4.01(a), 4.01(b) and/or 4.01(c).
Any funds not distributed to any Holder or Holders of Certificates of any
Class on the Final Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non- tendering Holder or Holders. If any Certificates as to which notice has
been given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Trustee shall
distribute to the Class R-III Certificateholders all unclaimed funds and other
assets which remain subject hereto.
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SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder purchases all the Mortgage Loans and each
REO Property remaining in the Trust Fund as provided in Section 9.01, the Trust
and each REMIC created hereunder shall be terminated in accordance with the
following additional requirements, unless the purchasing party obtains at its
own expense and delivers to the Trustee and the REMIC Administrator an Opinion
of Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the failure of the Trust to comply with the requirements of this Section
9.02 will not result in an Adverse REMIC Event with respect to any REMIC Pool:
(i) the REMIC Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
REMIC Pool, pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder (as evidenced by an Opinion of
Counsel to such effect delivered on behalf and at the expense of the
purchasing party);
(ii) during such 90-day liquidation period and at or prior to the time
of making the final payment on the Certificates, the Trustee shall sell all
the Mortgage Loans and each REO Property to the Master Servicer, the
Special Servicer or the Majority Controlling Class Certificateholder for
cash in accordance with Section 9.01; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of Residual
Interest Certificates all remaining cash on hand (other than cash retained
to meet claims), and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby authorize the
REMIC Administrator to prepare and adopt, on behalf of the Trust, a plan of
complete liquidation of each REMIC Pool in accordance with the terms and
conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The REMIC Administrator shall elect to treat each REMIC Pool as a REMIC
under the Code and, if necessary, under applicable state law. Each such election
will be made on Form 1066 or other appropriate federal tax or information return
or any appropriate state Tax Returns for the taxable year ending on the last day
of the calendar year in which the Certificates are issued.
(b) The applicable Plurality Residual Interest Certificateholder is hereby
designated as the Tax Matters Person of each REMIC Pool and, in such capacity,
shall be responsible to act on behalf of such REMIC Pool in relation to any tax
matter or controversy, to represent such REMIC Pool in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority, to request an administrative adjustment as to any taxable year
of such REMIC Pool, to enter into settlement agreements with any governmental
taxing agency with respect to such REMIC Pool, to extend any statute of
limitations relating to any tax item of such REMIC Pool and otherwise to act on
behalf of such REMIC Pool in relation to any tax matter or controversy involving
such REMIC Pool; provided that the REMIC Administrator is hereby irrevocably
appointed and agrees to act (in consultation with the Tax Matters Person for
each REMIC Pool) as agent and attorney-in-fact for the Tax Matters Person for
each REMIC Pool in the performance of its duties as such. The legal expenses and
costs of any action described in this Section 10.01(b) and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
payable out of amounts on deposit in the Distribution Account as provided by
Section 3.05(b) unless such legal expenses and costs are incurred by reason of a
Tax Matters Person's or the REMIC Administrator's misfeasance, bad faith or
negligence in the performance of, or such Person's reckless disregard of, its
obligations or are expressly provided by this Agreement to be borne by any party
hereto.
(c) The REMIC Administrator shall prepare or cause to be prepared and file,
and the Trustee shall sign, all of the Tax Returns in respect of each REMIC Pool
(other than Tax Returns required to be filed by the Master Servicer and/or the
Special Servicer pursuant to Section 3.09(g)) and all of the applicable income
tax and other information returns for each of Grantor Trust D-1 and Grantor
Trust D-2. The expenses of preparing and filing such returns shall be borne by
the REMIC Administrator without any right of reimbursement therefor.
(d) The REMIC Administrator shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide: (i) to any Transferor of a
Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required); and (iii) to the IRS, the name, title, address and telephone number
of the Person who will serve as the representative of each REMIC Pool.
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(e) The REMIC Administrator shall take such action and shall cause each
REMIC Pool to take such action as shall be necessary to create or maintain the
status thereof as a REMIC under the REMIC Provisions (and the other parties
hereto shall assist it, to the extent reasonably requested by the REMIC
Administrator) to the extent that the REMIC Administrator has actual knowledge
that any particular action is required; provided that the REMIC Administrator
shall be deemed to have knowledge of relevant tax laws. The REMIC Administrator
shall not knowingly take or fail to take any action, or cause any REMIC Pool to
take or fail to take any action, that under the REMIC Provisions, if taken or
not taken, as the case may be, could result in an Adverse REMIC Event in respect
of any REMIC Pool, unless the REMIC Administrator has received an Opinion of
Counsel to the effect that the contemplated action or non-action, as the case
may be, will not result in an Adverse REMIC Event. None of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the REMIC Administrator has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to any REMIC Pool or the assets thereof, or causing any REMIC Pool
to take any action, which is not contemplated by the terms of this Agreement,
each of the other parties hereto will consult with the REMIC Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the REMIC Administrator has advised it
in writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including "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 any REMIC Pool 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 on behalf of the Trust pursuant
to Section 3.17(a)), such tax, together with all incidental costs and expenses
(including 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 of any of its obligations under this Article X; (ii) the Trustee, if
such tax arises out of or results from a breach of any of its obligations under
Article IV, Article VIII or this Article X; (iii) any Fiscal Agent, if such tax
arises out of or results from a breach of any of its obligations under Article
IV or this Article X; (iv) 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; (v) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; or (vi) the Trust, out of the Trust Fund
(exclusive of Grantor Trust D-1 and Grantor Trust D-2), in all other instances.
If any tax is imposed on Grantor Trust D-1 or Grantor Trust D-2, such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Article X; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under Article IV, Article VIII or this Article
X; or (v) the Trust, out of the portion of the Trust Fund constituting such
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. Any such amounts payable
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by the Trust in respect of taxes shall be paid by the Trustee at the direction
of the REMIC Administrator out of amounts on deposit in the Distribution
Account.
(g) The REMIC Administrator and, to the extent that records are maintained
thereby in the normal course of its business, each of the other parties hereto
shall, for federal income tax purposes, maintain books and records with respect
to each REMIC Pool and each of Grantor Trust D-1 and Grantor Trust D-2 on a
calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall not
(except as contemplated by Section 2.03) accept any contributions of assets to
any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution) to the effect that the
inclusion of such assets in such REMIC Pool will not result in an Adverse REMIC
Event in respect of such REMIC Pool.
(i) None of the REMIC Administrator, the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent shall consent to or, to the extent it
is within the control of such Person, permit: (i) the sale or disposition of any
Mortgage Loan (except in connection with (A) a breach of any representation or
warranty regarding any Mortgage Loan set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or, in the case of a Column
Third Party Mortgage Loan, the Union Capital Agreement or as otherwise
contemplated by Section 2.02(e), (B) the foreclosure, default or reasonably
foreseeable material default of a Mortgage Loan, including the sale or other
disposition of a Mortgaged Property acquired by foreclosure, deed in lieu of
foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool, or (D) the
termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust (other
than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than a
Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Collection 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) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the REMIC
Administrator, the Master Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which any REMIC Pool will receive a fee or other
compensation for services or, to the extent it is within the control of such
Person, permit any REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code. At all times as may
be required by the Code, each of the respective parties hereto (to the extent it
is within its control) shall ensure that substantially all of the assets of each
REMIC Pool 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.
(k) Within thirty (30) days after the Closing Date, the REMIC Administrator
shall prepare and file with the IRS, with respect to each REMIC Pool, Form 8811
"Information Return for Real Estate Mortgage Investment Conduits (REMICs) and
Issuers of Collateralized Debt Obligations".
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(l) On or before April 15 of each calendar year, commencing April 15, 2000,
unless the REMIC Administrator and the Trustee are the same Person, the REMIC
Administrator shall deliver to the Trustee an Officer's Certificate from a
Responsible Officer of the REMIC Administrator confirming the REMIC
Administrator's compliance with its obligations under this Agreement during the
prior calendar year.
(m) The parties intend that the portions of the Trust Fund consisting of
(i) Additional Interest, (ii) Class D-1 Sub-Account and (iii) Class D-2
Sub-Account shall constitute, and that the affairs of the Trust Fund (exclusive
of the REMIC Pool) shall be conducted so as to qualify, such portions as a
"grantor trust" under the Code, and the provisions hereof shall be interpreted
consistently with this intention. The REMIC Administrator shall also perform on
behalf of each of Grantor Trust D-1 and Grantor Trust D-2 all reporting and
other tax compliance duties that are the responsibility of such Grantor Trust
under the Code or any compliance guidance issued by the IRS or any state or
local taxing authorities. The expenses of preparing and filing such returns
shall be borne by the REMIC Administrator.
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Trustee and
Fiscal Agent to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Closing Date, all information or
data that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
(b) Each of the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall furnish such reports, certifications and information in its
possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the REMIC Administrator in order to enable it to perform its duties
hereunder.
SECTION 10.03. Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the same
Person, the Trustee covenants and agrees to pay to the REMIC Administrator from
time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by the REMIC Administrator in the
exercise and performance of any of its obligations and duties hereunder.
SECTION 10.04. Use of Agents.
The REMIC Administrator may execute any of its obligations and duties
hereunder either directly or by or through agents or attorneys-in-fact approved
by the Trustee (which approval shall not be unreasonably withheld); provided
that the REMIC Administrator will not be relieved of its obligations hereunder
by reason of the use of such agents or attorneys-in-fact.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the parties hereto, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct, modify or supplement any provision
herein which may be inconsistent with any other provision herein or to correct
any error, (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 (A) the
REMIC Provisions (if the REMIC Provisions are amended or clarified such that any
such requirement may be relaxed or eliminated) or (B) the Securities Act or the
rules thereunder (if the Securities Act or such rules are amended or clarified
such that any such requirement may be relaxed or eliminated), (v) as evidenced
by an Opinion of Counsel delivered to the Trustee and the REMIC Administrator,
either (X) 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 any REMIC Pool or either of Grantor
Trust D-1 or Grantor Trust D-2 at least from the effective date of such
amendment, or (Y) 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 REMIC Pool or either of Grantor Trust D-1 or
Grantor Trust D-2, (vi) as provided in Section 5.02(d)(iv), to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); or (vii)
for any other purpose; provided that such amendment (other than any amendment
for any of the specific purposes described in clauses (v) and (vi) above) shall
not adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an Opinion of Counsel obtained by or
delivered to the Trustee to such effect; and provided, further, that any such
amendment covered solely by clause (vii) above shall not (as confirmed in
writing to the Trustee by each Rating Agency) result in an Adverse Rating Event
with respect to any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 662/3% of the Voting Rights allocated to all of 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 and/or REO Properties which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than as
described in clause (i) above without the consent of the Holders of all
Certificates of such Class or (iii) modify the provisions of this Section 11.01
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 the matters described
above as they would if registered in the name of any other Person.
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<PAGE>
(c) Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the REMIC Administrator shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel to the effect that such amendment or the exercise of any power
granted to any party hereto in accordance with such amendment will not result in
an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to either of Grantor Trust D-1 or Grantor Trust D-2.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Trustee shall send a copy thereof to each Certificateholder
and to each Rating Agency.
(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, execution
and delivery thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any amendment
pursuant to this Section 11.01 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) or (c) shall be borne by the Person seeking the related amendment,
except that if the Trustee requests any amendment of this Agreement that it
reasonably believes 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
Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust (payable out of the Collection
Account), but only upon written direction of the Depositor accompanied by an
Opinion of Counsel (the cost of which may be paid out of the Collection Account)
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless,
with respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and unless also (except in the case of a default by the Trustee) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
(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 any other Holders of Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder (which priority
or preference is not otherwise provided for herein), or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.03, 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 substantive laws of the State of New York applicable to agreements made and
to be performed entirely in said State, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws. The
parties hereto intend that the provisions of Section 5-1401 of the New York
General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given when delivered to: (i) in the case of the Depositor, DLJ Commercial
Mortgage Corp., 277 Park Avenue, 9th Floor, New York, New York 10172, Attention:
N. Dante LaRocca, telecopy number: (212) 892-2003; (ii) in the case of the
Master Servicer, GE Capital Loan Services, Inc., 363 North Sam Houston Parkway
East, Suite 1200, Houston, Texas 77060, Attention: Legal Department, telecopy
number (281) 405-7145; (iii) in the case of the Special Servicer, Banc One
Mortgage Capital Markets, LLC, 1717 Main Street, 14th Floor, Dallas, Texas
75201, Attention: Edgar L. Smith, II, telecopy number: (214) 290-4480, with a
copy to Banc One Mortgage Capital Markets, LLC, 1717 Main Street, Dallas, Texas
75201, Attention: Paul G. Smyth, telecopy number: (214) 290-5293; (iv) in the
case of the Trustee and the REMIC Administrator, Norwest Bank Minnesota,
National
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<PAGE>
Association, 11000 Broken Land Parkway, Columbia, Maryland 21044-3562,
Attention: Corporate Trust Services (CMBS)-DLJ Commercial Mortgage Corp., Series
1999-CG1, telecopy number: (410) 884-2372; (v) in the case of the Rating
Agencies, (A) Moody's Investors Service, Inc., 99 Church Street, New York, New
York 10007, Attention: Commercial MBS Monitoring Department, telecopy number
(212) 553-0300; and (B) in the case of Fitch IBCA, Inc., One State Street Plaza,
New York, New York 10004, attention: Commercial Mortgage Surveillance
Department, telecopy number: (212) 635-0295;(vi) in the case of GECA, GE Capital
Access, Inc., 125 Park Avenue, New York, New York Attention: Director -
Securitization, telecopy number (212) 716-8911; and (vii) in the case of Column,
Column Financial Inc., 3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia
30326-1113, Attention: President, telecopy number (404) 239- 0419; or as to each
such Person such other address and/or telecopy number 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
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and, as
third party beneficiaries, the Underwriters and the non- parties referred to in
Sections 6.03 and 8.05, and all such provisions shall inure to the benefit of
the Certificateholders. No other person, including any Borrower, shall be
entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor.
(a) The Trustee shall promptly provide notice to each Rating Agency and the
Depositor with respect to each of the following of which a Responsible Officer
of the Trustee 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 Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
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(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account or the
Interest Reserve Account;
(vi) any repurchase or substitution of a Mortgage Loan by GECA, Column
or Union Capital as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each Rating Agency
and the Depositor with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as the case may
be, shall furnish each Rating Agency such information with respect to the
Mortgage Loans as such Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a tenant
representing more than 20% of the total net rentable square feet of space)
at any Mortgaged Property used for retail purposes or any change in the
term of the lease for an anchor tenant at any such Mortgaged Property; and
(iii) any assumption of, or release or substitution of collateral for,
a Mortgage Loan that represents greater than 2% of the then aggregate
Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged Property.
(d) Each of the Master Servicer and the Special Servicer, as the case may
be, shall promptly furnish to each Rating Agency copies of the following items
(in each case, at or about the same time that it delivers or causes the delivery
of such item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e) and Section
3.12.
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<PAGE>
(e) The Trustee shall promptly deliver to each Rating Agency (in hard copy
format or through use of the Trustee's Internet website for Moody's) a copy of
each Trustee Report, Unrestricted Servicer Report and Restricted Servicer Report
forwarded to the Holders of the Certificates (in each case, at or about the same
time that it delivers such Certificateholder Report to such Holders). Any
Restricted Servicer Reports delivered electronically as aforesaid shall be
accessible on the Trustee's Internet website only with the use of a password,
which shall be provided by the Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the Trustee, upon
request, a listing of the then-current rating (if any) assigned by such Rating
Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicer or the Special Servicer, as the case may
be, shall deliver to the Controlling Class Representative a copy of each notice
or other item of information such Person is required to deliver to the Rating
Agencies pursuant to Section 11.09, in each case simultaneously with the
delivery thereof to the Rating Agencies.
SECTION 11.11. Information Requested by GECA.
The Trustee shall provide to GECA promptly following any written request
therefor submitted by GECA any Certificateholder Reports theretofore or
simultaneously delivered or made available by the Trustee to Certificateholders.
Such reports shall be provided or made available in electronic format or, if
requested by GECA, by first class mail.
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.
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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.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By: /s/ N. Dante LaRocca
--------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
GE CAPITAL LOAN SERVICES, INC.
Master Servicer
By: /s/ Joseph F. Beggins
--------------------------------
Name: Joseph F. Beggins
Title: President and CEO
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Special Servicer
By: /s/ Edgar L. Smith, II
--------------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
solely in its capacity as
Trustee and REMIC Administrator
By: /s/ Leslie A. Gaskill
--------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 9th day of March 1999, before me, a notary public in and for said
State, personally appeared N. Dante LaRocca, personally known to me to be a
Senior Vice President of DLJ COMMERCIAL MORTGAGE CORP., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Diane Anterio
--------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF HARRIS )
On this 8th day of March 1999, before me, a notary public in and for said
State, personally appeared Joseph F. Beggins, personally known to me to be the
President and CEO of GE CAPITAL LOAN SERVICES, INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Bernadette Tatum
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On this 17th day of March 1999, before me, a notary public in and for said
State, personally appeared Edgar L. Smith, II, personally known to me to be the
Chief Operating Officer of BANC ONE MORTGAGE CAPITAL MARKETS, LLC, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Jerry Newman
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of March 1999 before me, a notary public in and for said
State, personally appeared Leslie A. Gaskill, personally known to me to be a
Vice President of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Yariv Katz
---------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS S CERTIFICATES
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
<TABLE>
<CAPTION>
DLJ COMMERCIAL MORTGAGE CORP.
<S> <C>
Pass-Through Rate: Class Notional Amount of the [Class S] Certificates as
Variable of the Closing Date:
$___________________
Cut-off Date: March 1, 1999 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Closing Date: March 19, 1999 $___________________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 12, 1999 Loans as of the Closing Date ("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [S-1] CUSIP No.: ________________
</TABLE>
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS 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, AS AMENDED (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS [MARCH __, 1999]. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT OF PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN
FULL ON THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $______ OF OID PER $100,000 OF INITIAL CERTIFICATE
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $100,000 OF
INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER A CONSTANT YIELD METHOD WITH
DAILY COMPOUNDING. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT
PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.
A-1-2
<PAGE>
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional amount
of this Certificate (its "Certificate Notional Amount") as of the Closing Date
by the aggregate notional amount of all the [Class S] Certificates (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the [Class S] Certificates. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), GE Capital Loan
Services, Inc. as master servicer (the "Master Servicer," which term includes
any successor entity under the Agreement), Banc One Mortgage Capital Markets,
LLC as special servicer (the "Special Servicer," which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association as trustee and REMIC administrator (the "Trustee" and "REMIC
Administrator", respectively, depending upon the capacity in which it is acting,
each of which terms 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, 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 its acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, 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 all the Holders of the [Class S] Certificates on
the applicable Distribution Date pursuant to the Agreement. The "Determination
Date" in each month, commencing in April 1999, will be the fourth day of such
month or, if such fourth day is not a Business Day, then the immediately
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee 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 Trustee 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
A-1-3
<PAGE>
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 Distribution Account, the Collection 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.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent, the Certificate Registrar and any agent
of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal 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 REMIC Administrator, any Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, 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
A-1-4
<PAGE>
to be distributed to them pursuant to the Agreement following the earlier of (i)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the
purchase by the Master Servicer, the Special Servicer or the Majority
Controlling Class Certificateholder, at a price determined as provided in the
Agreement, of all the 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 Controlling Class Certificateholder to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
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 REMIC Administrator,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66 2/3% of the
Voting Rights allocated to all of 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 any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the [Class S] Certificates referred to in the
within-mentioned Agreement.
Dated: [March __, 1999]
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-1-6
<PAGE>
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1A AND A-1B CERTIFICATES
CLASS [A-1A] [A-1B] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1999-G1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
<TABLE>
<CAPTION>
DLJ COMMERCIAL MORTGAGE CORP.
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [A-1A] [A-1B]
___% per annum Certificates as of the Closing Date:
$_______________________
Cut-off Date: March 1, 1999 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Closing Date: March 19, 1999 $_______________________
First Distribution Date: April 12, 1999 Aggregate Stated Principal Balance of the Mortgage Loans
as of the Closing Date ("Initial Pool Balance"):$
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [A-1A] [A-B] CUSIP No.:________________
</TABLE>
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS 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, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-2-2
<PAGE>
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class [A-1A] [A-1B]
Certificates (their "Class Principal Balance") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [A-1A] [A-1B] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), GE Capital Loan Services, Inc. as master servicer
(the "Master Servicer," which term includes any successor entity under the
Agreement), Banc One Mortgage Capital Markets, LLC as the special servicer
(Special Servicer," which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee and REMIC
administrator (the "Trustee" and "REMIC Administrator", respectively, depending
upon the capacity in which it is acting, each of which terms 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,
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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution Date
specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, 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 all the Holders of the Class [A-1A] [A-1B]
Certificates on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in April 1999, will be the fourth
day of such month or, if such fourth day is not a Business Day, then the
immediately preceding Business Day. All distributions made under the Agreement
on this Certificate will be made by the Trustee 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 Trustee 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.
A-2-3
<PAGE>
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 Distribution Account, the Collection 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.
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.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent, the Certificate Registrar and any agent
of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal 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 REMIC Administrator, any Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
A-2-4
<PAGE>
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the 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 Controlling Class Certificateholder to purchase from
the Trust Fund all the Mortgage Loans and each REO Property remaining therein.
The exercise of such right may 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 1.0% of the
Initial Pool Balance.
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 REMIC Administrator,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66 2/3% of the
Voting Rights allocated to all of 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 any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1A] [A-1B] Certificates referred to in the
within-mentioned Agreement.
Dated: [March __, 1999]
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-2-6
<PAGE>
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2, CLASS A-3, CLASS A-4, CLASS B-1 AND B-2 CERTIFICATES
CLASS [A-2] [A-3] [A-4] [B-1] [B-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
<TABLE>
<CAPTION>
DLJ COMMERCIAL MORTGAGE CORP.
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [A-2] [A-3] [A-4]
[___% per annum [FOR CLASS [A-2] [A-3] AND [B-1] [B-2] Certificates as of the Closing Date:
[A-4] CERTIFICATES] $_______________________
[Variable [FOR CLASS B-1 AND B-2 CERTIFICATES]]
Cut-off Date: March 1, 1999 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Closing Date: March 19, 1999 $_______________________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 12, 1999 Loans as of the Closing Date
("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [A-2] [A-3] [A-4] [B-1] [B-2] CUSIP No.: _________________
- -___
</TABLE>
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, GE
CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE CAPITAL MARKETS, LLC, OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN 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 CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS [MARCH __, 1999]. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT OF PRINCIPAL (EXCEPT
A-3-2
<PAGE>
THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$______ OF OID PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO
MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
ACCRUAL PERIOD IS NO MORE THAN $____ PER $100,000 OF INITIAL CERTIFICATE
NOTIONAL AMOUNT, COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING.
NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO
PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE. THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.]
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class [A-2] [A-3]
[A-4] [B-1] [B-2] Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Class [A-2] [A-3] [A-4] [B-1] [B-2] Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), GE Capital Loan
Services, Inc. as master servicer (the "Master Servicer," which term includes
any successor entity under the Agreement), Banc One Mortgage Capital Markets,
LLC as special servicer (the "Special Servicer," which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association as trustee and REMIC administrator (the "Trustee" and "REMIC
Administrator", respectively, depending upon the capacity in which it is acting,
each of which terms 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, 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 its acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, 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 all the Holders of the Class [A-2] [A-3] [A-4]
[B-1] [B-2] Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in April 1999,
will be the fourth day of such month or, if such fourth day is not a Business
Day, then the immediately preceding Business Day. All distributions made under
the Agreement on this Certificate will be made by the
A-3-3
<PAGE>
Trustee 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 Trustee 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.
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 Distribution Account, the Collection 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.
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.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest therein shall be made (A)
to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing this Certificate or any interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 of ERISA or
Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in connection with the initial issuance
of the Certificates or any transfer of this Certificate or any interest herein
by the Depositor, Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"),
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch" and,
together with DLJSC, the "Underwriters") or any of their respective Affiliates
or any transfer of this Certificate to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement,
the Certificate Registrar shall refuse to register the transfer of this
Certificate unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee
A-3-4
<PAGE>
is not a Plan and is not directly or indirectly purchasing this Certificate on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) a certification to the effect that the purchase and holding of this
Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60; or
(iii) a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Trustee that such transfer will
not result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that either: (i)
such Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transactions Class Exemption
95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the preceding
paragraph.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent, the Certificate Registrar and any agent
of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent or the
A-3-5
<PAGE>
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 REMIC Administrator, any
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the 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 Controlling Class Certificateholder to purchase from
the Trust Fund all the Mortgage Loans and each REO Property remaining therein.
The exercise of such right may 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 1.0% of the
Initial Pool Balance.
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 REMIC Administrator,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66 2/3% of the
Voting Rights allocated to all of 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 any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-2] [A-3] [A-4] [B-1] [B-2] Certificates
referred to in the within-mentioned Agreement.
Dated: [March __, 1999]
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-3-7
<PAGE>
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-3, CLASS B-4, CLASS B-5, CLASS B-6,
CLASS B-7, CLASS B-8 AND CLASS C CERTIFICATES
CLASS [B-3] [B-4] [B-5] [B-6] ] [B-7] [B-8] [C] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
<TABLE>
<CAPTION>
DLJ COMMERCIAL MORTGAGE CORP.
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [B-3]
[____% per annum [B-3] [B-4] [B-5] [B-6] [B-4] [B-5] [B-6] [B-7] [B-8] [C] Certificates as of
[B-7] [B-8] [C] the Closing Date: $_______________________
Cut-off Date: March 1, 1999 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Closing Date: March 19, 1999 $_______________________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 12, 1999 Loans as of the Closing Date
("Initial Pool Balance"): $
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [B-3] [B-4] [B-5] [B-6] [B-7] CUSIP No.: ___________
[B-8] [C]-___
</TABLE>
A-4-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE
CAPITAL MARKETS, LLC, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-4-2
<PAGE>
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 CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 2, 1999. ASSUMING THAT
THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY PREPAYMENT OF
PRINCIPAL (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $______ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS ____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO
PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
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 Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [B-3] [B-4]
[B-5] [B-6] [B-7] [B-8] [C] Certificates (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
Fund evidenced by all the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GE Capital Loan Services, Inc. as master servicer (the " Master
Servicer", which term includes any successor entity under the Agreement), Banc
One Mortgage Capital Markets, LLC as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee and REMIC Administrator (the
"Trustee" and "REMIC Administrator", respectively, depending upon the capacity
in which it is acting, each of which terms 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, 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 its
acceptance hereof assents and by which such Holder is bound.
A-4-3
<PAGE>
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, 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 all the Holders of the Class [B-3] [B-4] [B-5]
[B-6] [B-7] [B-8] [C] Certificates on the applicable Distribution Date pursuant
to the Agreement. The "Determination Date" in each month, commencing in April
1999, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee 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 Trustee 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.
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 Distribution Account, the Collection 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.
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.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration
A-4-4
<PAGE>
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of this Certificate is to be made
without registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor, Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"),
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch" and,
together with DLJSC, the "Underwriters") or any of 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 F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee 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 or of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee, any
Fiscal Agent 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. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. Any Certificateholder
desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the REMIC Administrator and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer or an Institutional Accredited Investor. The
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee a certification,
substantially in the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the
Agreement,. to the effect that such prospective Transferee is a Qualified
Institutional Buyer or a certification from the prospective Transferee to the
effect that such prospective Transferee is an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall be made (A) to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing
A-4-5
<PAGE>
this Certificate or any interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in connection with the initial issuance of the Certificates or any transfer of
this Certificate or any interest herein by the Depositor, the Underwriters or
any of their respective Affiliates, the Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject transfer, deliver to the
Certificate Registrar a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the two preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
A-4-6
<PAGE>
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent, the Certificate Registrar and any agent
of the Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal 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 REMIC Administrator, any Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Servicer, the Special Servicer or
the Majority Controlling Class Certificateholder to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right may 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 1.0% of the Initial Pool Balance.
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 REMIC Administrator,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66 2/3% of the
Voting Rights allocated to all of 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 any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
A-4-7
<PAGE>
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-4-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-4-9
<PAGE>
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-4-10
<PAGE>
EXHIBIT A-5
FORM OF CLASS D CERTIFICATES
[CLASS D] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
<TABLE>
<CAPTION>
DLJ COMMERCIAL MORTGAGE CORP.
<S> <C>
Cut-off Date: March 1, 1999 Percentage Interest evidenced by this [Class D]
Certificate: ______%
Closing Date: March 19, 1999
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 12, 1999 Loans as of the Closing Date
("Initial Pool Balance"): $_______________
Master Servicer: Trustee and REMIC Administrator:
GE Capital Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [D-___]
</TABLE>
A-5-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE
CAPITAL MARKETS, LLC, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by evidenced
by all the [Class D] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. (the
A-5-2
<PAGE>
"Depositor", which term includes any successor entity under the Agreement), GE
Capital Loan Services, Inc. (the "Master Servicer", which term includes any
successor entity under the Agreement), Banc One Mortgage Capital Markets, LLC
(the "Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association (the "Trustee" and
"REMIC Administrator", depending upon the capacity in which it is acting, each
of which terms 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, 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 its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, 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 all the Holders of the [Class D] Certificates on
the applicable Distribution Date pursuant to the Agreement. The "Determination
Date" in each month, commencing in April 1999, will be the fourth day of such
month or, if such fourth day is not a Business Day, then the immediately
preceding Business Day. All distributions made under the Agreement on this
Certificate will be made by the Trustee 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 Trustee 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.
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 Distribution Account, the Collection 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.
A-5-3
<PAGE>
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.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJSC"), Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch" and, together with DLJSC, the
"Underwriters") or any of 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 F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee 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 or of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent 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. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. Any Certificateholder
desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the REMIC Administrator and the Certificate
Registrar against any liability that may result if such transfer, sale, pledge
or other disposition is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
A-5-4
<PAGE>
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriters or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the two preceding
paragraphs.
A-5-5
<PAGE>
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent, the Certificate Registrar and any agent
of the Depositor, the Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, any Fiscal 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 REMIC Administrator, any Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the 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 Controlling Class Certificateholder to purchase from
the Trust Fund all the Mortgage Loans and each REO Property remaining therein.
The exercise of such right may 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 1.0% of the
Initial Pool Balance.
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 REMIC Administrator,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66 2/3% of the
Voting Rights allocated to all of 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
A-5-6
<PAGE>
circumstances, including any amendment necessary to maintain the status of any
REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-5-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the [Class D] Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-5-8
<PAGE>
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-5-9
<PAGE>
EXHIBIT A-6
FORM OF CLASS R-I, CLASS R-II, CLASS R-III CERTIFICATES
CLASS [R-I] [R-II] [R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-CG1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
<TABLE>
<CAPTION>
DLJ COMMERCIAL MORTGAGE CORP.
<S> <C>
Cut-off Date: March 1, 1999 Percentage Interest evidenced by
this Certificate: ___%
Closing Date: March 19, 1999 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Closing Date
("Initial Pool Balance"):$______________
First Distribution Date: Trustee and REMIC Administrator:
April 12, 1999 Norwest Bank Minnesota, National Association
Master Servicer:
GE Capital Loan Services, Inc.
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. [R-I] [R-II] [R-III] -__
</TABLE>
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., GE CAPITAL LOAN SERVICES, INC., BANC ONE MORTGAGE
CAPITAL MARKETS, LLC, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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
A-6-2
<PAGE>
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, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [R-I] [R-II ][R-III] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. (the "Depositor", which term includes any successor entity under
the Agreement), GE Capital Loan Services, Inc. (the "Master Servicer", which
term includes any successor entity under the Agreement) and Banc One Mortgage
Capital Markets, LLC (the "Special Servicer", which term includes any successor
entity under the Agreement) and Norwest Bank Minnesota, National Association
(the "Trustee" and "REMIC Administrator", depending upon the capacity in which
it is acting, each of which terms 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, 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 its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the later of (i) the tenth day of such
month (or, if such tenth day is not a Business Day, on the next succeeding
Business Day) and (ii) the fourth Business Day following the Determination Date
(as defined below) in such month, 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 all the Holders of the
Class [R-I] [R-II] [R-III] Certificates on the applicable Distribution Date
pursuant to the Agreement. The "Determination Date" in each month, commencing in
April 1999, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee 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 Trustee 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
A-6-3
<PAGE>
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 Distribution Account, the Collection 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.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJSC"), Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch" and, together with DLJSC, the
"Underwriters") or any of 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 F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee 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 or of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator, the Trustee, any Fiscal Agent 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. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (ii) of the preceding sentence or the Opinion of Counsel
described in clause (iii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. Any Certificateholder
desiring to effect a transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the REMIC
A-6-4
<PAGE>
Administrator and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriters or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transactions Class Exemption 95-60.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person
A-6-5
<PAGE>
other than such Person and to have irrevocably authorized the Trustee under
clause (ii)(B) of such Section 5.02(d) to negotiate the terms of any mandatory
disposition and to execute all instruments of Transfer and to do all other
things necessary in connection with any such disposition. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Trustee and the REMIC Administrator of
any change or impending change in its status as a Permitted Transferee. In
connection with any proposed Transfer of any Ownership Interest in this
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of this Certificate until its receipt of, an affidavit
and agreement substantially in the form attached as Exhibit H-1 to the Agreement
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
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 either the
Certificate Registrar or Trustee 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.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-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 Trustee and the REMIC
Administrator 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".
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the four preceding
paragraphs.
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 Trustee
and the REMIC Administrator 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 result in an Adverse Rating Event with respect to
any Class of Rated Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the REMIC Administrator, to the effect
that such modification of, addition to or elimination of such provisions will
not cause any REMIC Pool to
A-6-6
<PAGE>
cease to qualify as a REMIC or be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person that 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 Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee " is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States or a possession thereof, any State or political
subdivision thereof or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for FHLMC, a majority of its board of directors
is not selected by such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, 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.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
A-6-7
<PAGE>
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal Agent, the Certificate Registrar and any agent
of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, any Fiscal 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 REMIC Administrator, any Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, at a price determined as provided in the Agreement, of all
the 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 Controlling Class Certificateholder to purchase from
the Trust Fund all the 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 1.0% of the
Initial Pool Balance.
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 REMIC Administrator,
the Trustee and any Fiscal Agent and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to not less than 66 2/3% of the
Voting Rights allocated to all of 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 any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-6-8
<PAGE>
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 substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-6-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates referred to in
the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:________________________________
Authorized Officer
A-6-10
<PAGE>
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-6-11
<PAGE>
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
B-1A-1
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City County
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
18 Westchase Ranch Apartments (1C) 2101 Hayes Houston Harris
19 Westwood Village Apartments (1C) 4310 W. Northgate Drive Irving Dallas
20 Normandy Woods Apartments (1C) 695 Normandy Drive Houston Harris
21 Savoy Manor Apartments (1C) 5915 Flintock Drive Houston Harris
22 San Marin Apartments (1C) 3501 W. Waters Avenue Tampa Hillsborough
24 2294 Molly Pitcher Highway (1D) 2294 Molly Pitcher Highway Chambersburg Franklin
25 5015 Campuswood Drive (1D) 5015 Campuswood Drive East Syracuse Onondaga
26 5010 Campuswood Drive (1D) 5010 Campuswood Drive East Syracuse Onondaga
27 5009 Campuswood Drive (1D) 5009 Campuswood Drive East Syracuse Onondaga
37 White Station Tower 5050 Poplar Avenue Memphis Shelby
38 Holiday Inn New Orleans Veterans 6401 Veterans Boulevard Metairie Jefferson
41 The Shoppes at Longwood 823-883 E. Baltimore Pike Kennett Square Chester
44 Tiffany Square 6805 Corporate Drive Colorado Springs El Paso
45 The Mint Apartments 6700 Dairy Ashford Road Houston Harris
50 Parkshore Centre Office Building 1 Poston Road Charleston Charleston
65 Mahwah Business Park Ramapo Valley Road Mahwah Bergen
67 Tech Center 29 Office/Warehouse Complex 12120 and 12140 Industrial Parkway Silver Spring Montgomery
69 Cranbrook Centre Apartments (1H) 18333 South Drive Southfield Oakland
70 Cranbrook Centre Office Buildings (1H) 30161, 30215, 30233 Southfield Road Southfield Oakland
75 Marycrest Shopping Center (2) 2126 West Jefferson Street Joliet Will
76 Elm Plaza Shopping Center 338 Main Street Waterville Kennebec
82 Tierra Verde Marine Center 100 Pinellas Bayway Tierra Verde Pinellas
84 Merchant's Square (3) 7195 Highway 85 Riverdale Clayton
88 The Watermill Apartments 6505 Westheimer Road Houston Harris
89 Brooks Corner 136 Main Street Westport Fairfield
90 Hollywood Ardmore Apartments 1850 Whitley Avenue Los Angeles Los Angeles
99 New Franklin Apartments (4) Various Franklin/Tilton Belknap/Merrimack
100 Windjammer Apartments 950 F.M. 1959 Houston Harris
101 Woodlake Village Apartments 5080 Westerville Road Columbus Franklin
102 Comfort Inn - Hopewell, VA 5380 Oaklawn Boulevard (VSH 36) Hopewell Prince George
106 Sagamore Court Apartments 555-567 Sagamore Avenue Portsmouth Rockingham
107 Carriage Hill Apartments 935 - 1385 Carraige Hill Lane Hamilton Butler
111 Spruce Properties (1J) 116 Oak Grove Street & 1400-1408 Spruce Place Minneapolis Hennepin
112 Oak Grove Apartments (1J) 225, 227, and 233 Oak Grove St. Minneapolis Hennepin
113 Aldrich Apartments (1J) 1926, 1928, 1930, 1934, and 1936 Aldrich Ave. Minneapolis Hennepin
118 Mobile Estate Mobile Home Park 16745 SE Division Street Portland Multnomah
132 Century Plaza Strip Shopping Center (1K) 355-385 W. Northwest Highway Palatine Cook
133 Albany Square Strip Shopping Center (1K) 4445 N. Pulaski Road Chicago Cook
134 Larrabee Complex 100 Main Street Westbrook Cumberland
153 Woodland Park Office Building 21731 Ventura Boulevard Woodland Hills Los Angeles
155 Costa Mesa Mobile Estates 327 West Wilson Street Costa Mesa Orange
156 Greenville Village Mobile Home Park 6509 Greenville Loop Road Wilmington New Hanover
160 The Amberton Apartments 1550 University Woods Place Tampa Hillsborough
168 Holiday Inn Express Auburn 404 Touring Drive Auburn DeKalb
175 Airport Business Center 555 West Layton Avenue Milwaukee Milwaukee
179 High Point Village I Apartments 139 South Clark Road Cedar Hill Dallas
184 Park Lane Village Apartments (1L) 7746 Red Arrow Highway Watervliet Berrien
185 Rynearson Lane Village Apartments (1L) 1386 Leisure Lane Buchanan Berrien
186 Holiday Inn Express Ottawa 120 West Stevenson Ottawa LaSalle
196 Linden Place Mobile Home Park G-4192 South Linden Road Flint Genessee
197 Moore Lake Commons Shopping Center 1001 East Moore Lake Drive Fridley Anoka
200 South Street Seaport Office Center 19 Fulton Street & 133 Beekman Street New York New York
201 Hathaway Commerce Center 1004 - 1010 South Hathaway Street Santa Ana Orange
205 Devonshire Square Retail Center 16913-16933 Devonshire Street Granada Hills Los Angeles
209 Hillside View Apartments 243 Pleasant Street Concord Merrimack
210 Benihana Restaurant 4250 Birch Street Newport Beach Orange
211 Crosswinds Apartments 4355 South Jones Blvd. Las Vegas Clark
213 Twin Lakes Mobile Home Park 7001 Lakes Boulevard Fort Mill York
214 Antietam Village Center 1595 Opposumtown Pike Frederick Frederick
223 The Nations Bank Building 4000 Garth Road Baytown Harris
224 Quail Ridge Apartments 1001 North State Road Davison Genesee
228 Harold Gilstrap Shopping Center 601 S. Main Street Salem Washington
229 Lakeside Apartments 1355 West Maple Avenue Mundelein Lake
230 Park Glen Apartments Parke West Drive Glen Burnie Anne Arundel
231 St. Lucie Mobile Village 11500 SW Kanner Highway Indiantown Martin
Mortgage Loan Schedule
<CAPTION>
Mortgage Original
Zip Loan Principal Cut-off Date Monthly Mortgage
# Property Name State Code Seller Balance Balance (7) Payment Rate
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
18 Westchase Ranch Apartments (1C) TX 77077 Column 22,556,014 22,529,265 153,413.07 7.2200%
19 Westwood Village Apartments (1C) TX 75062 Column 10,400,000 10,387,667 70,734.84 7.2200%
20 Normandy Woods Apartments (1C) TX 77015 Column 7,120,000 7,111,557 48,426.16 7.2200%
21 Savoy Manor Apartments (1C) TX 77040 Column 5,200,000 5,193,833 35,367.42 7.2200%
22 San Marin Apartments (1C) FL 33614 Column 3,613,312 3,609,027 24,575.68 7.2200%
24 2294 Molly Pitcher Highway (1D) PA 17201 Column 17,200,000 17,149,044 120,854.33 7.5500%
25 5015 Campuswood Drive (1D) NY 13057 Column 7,200,000 7,178,670 50,590.19 7.5500%
26 5010 Campuswood Drive (1D) NY 13057 Column 4,483,200 4,469,918 31,500.82 7.5500%
27 5009 Campuswood Drive (1D) NY 13057 Column 516,800 515,269 3,631.25 7.5500%
37 White Station Tower TN 38157 Column 15,500,000 15,500,000 107,424.63 7.4100%
38 Holiday Inn New Orleans Veterans LA 70003 Column 15,000,000 14,977,561 115,772.43 8.0000%
41 The Shoppes at Longwood PA 19348 Column 14,200,000 14,163,600 98,378.61 6.7800%
44 Tiffany Square CO 80919 Column 11,250,000 11,230,709 78,123.10 7.4300%
45 The Mint Apartments TX 77072 Column 11,150,000 11,136,789 75,911.46 7.2300%
50 Parkshore Centre Office Building SC 29407 Column 9,300,000 9,267,733 60,319.62 6.7500%
65 Mahwah Business Park NJ 07430 Column 8,000,000 7,935,363 57,670.02 7.2200%
67 Tech Center 29 Office/Warehouse Complex MD 20904 Column 7,600,000 7,588,003 55,325.64 7.3300%
69 Cranbrook Centre Apartments (1H) MI 48076 Column 4,925,000 4,916,622 34,368.89 7.4800%
70 Cranbrook Centre Office Buildings (1H) MI 48076 Column 2,500,000 2,495,747 17,446.14 7.4800%
75 Marycrest Shopping Center (2) IL 60435 Column 7,000,000 7,000,000 50,294.05 7.7800%
76 Elm Plaza Shopping Center ME 04901 Column 7,000,000 6,980,077 50,148.86 7.7500%
82 Tierra Verde Marine Center FL 33715 Column 6,900,000 6,838,329 50,229.86 7.3300%
84 Merchant's Square (3) GA 30274 Column 6,600,000 6,600,000 45,508.18 7.1500%
88 The Watermill Apartments TX 77057 Column 6,400,000 6,379,593 43,355.83 7.1800%
89 Brooks Corner CT 06880 Column 6,300,000 6,300,000 47,008.15 7.6100%
90 Hollywood Ardmore Apartments CA 90028 Column 6,250,000 6,236,842 44,991.91 7.8000%
99 New Franklin Apartments (4) NH Various Column 5,400,000 5,345,280 41,703.84 6.2500%
100 Windjammer Apartments TX 77034 Column 5,226,000 5,219,924 36,397.92 7.4600%
101 Woodlake Village Apartments OH 43081 Column 5,240,000 5,217,795 33,673.65 6.6600%
102 Comfort Inn - Hopewell, VA VA 23875 Column 5,200,000 5,181,769 38,005.74 7.3750%
106 Sagamore Court Apartments NH 03801 Column 4,970,000 4,960,750 32,798.94 6.9200%
107 Carriage Hill Apartments OH 45013 Column 4,940,000 4,927,800 32,865.94 7.0000%
111 Spruce Properties (1J) MN 55403 Column 1,975,000 1,970,671 13,944.98 7.6000%
112 Oak Grove Apartments (1J) MN 55403 Column 1,475,000 1,471,767 10,414.60 7.6000%
113 Aldrich Apartments (1J) MN 55403 Column 1,050,000 1,047,699 7,413.78 7.6000%
118 Mobile Estate Mobile Home Park OR 97233 Column 4,300,000 4,289,993 29,479.55 7.3000%
132 Century Plaza Strip Shopping Center (1K) IL 60067 Column 2,100,000 2,088,575 14,087.63 6.4300%
133 Albany Square Strip Shopping Center (1K) IL 60618 Column 1,700,000 1,690,752 11,404.27 6.4300%
134 Larrabee Complex ME 04092 Column 3,700,000 3,685,680 25,563.73 6.7500%
153 Woodland Park Office Building CA 91364 Column 3,050,000 3,043,676 22,114.62 7.8750%
155 Costa Mesa Mobile Estates CA 92627 Column 3,000,000 2,996,361 19,878.55 6.9600%
156 Greenville Village Mobile Home Park NC 28409 Column 3,000,000 2,992,519 22,169.74 7.5000%
160 The Amberton Apartments FL 33612 Column 2,900,000 2,890,880 19,783.11 7.2500%
168 Holiday Inn Express Auburn IN 46706 Column 2,800,000 2,789,581 19,789.82 7.0000%
175 Airport Business Center WI 53207 Column 2,700,000 2,693,962 18,878.79 7.5000%
179 High Point Village I Apartments TX 75014 Column 2,650,000 2,650,000 18,984.92 7.7500%
184 Park Lane Village Apartments (1L) MI 49098 Column 1,350,000 1,345,453 10,086.40 7.6250%
185 Rynearson Lane Village Apartments (1L) MI 49107 Column 1,150,000 1,146,126 8,592.12 7.6250%
186 Holiday Inn Express Ottawa IL 61350 Column 2,500,000 2,490,697 17,669.48 7.0000%
196 Linden Place Mobile Home Park MI 48507 Column 2,325,000 2,313,654 16,618.48 7.1250%
197 Moore Lake Commons Shopping Center MN 55432 Column 2,300,000 2,295,187 16,604.81 7.8300%
200 South Street Seaport Office Center NY 10038 Column 2,250,000 2,242,342 16,715.21 7.5600%
201 Hathaway Commerce Center CA 92705 Column 2,200,000 2,195,081 15,382.72 7.5000%
205 Devonshire Square Retail Center CA 91344 Column 2,125,000 2,118,371 16,542.11 8.1000%
209 Hillside View Apartments NH 03301 Column 2,050,000 2,038,134 15,893.63 7.0000%
210 Benihana Restaurant CA 92660 Column 2,000,000 1,996,924 14,975.51 7.6500%
211 Crosswinds Apartments NV 89103 Column 2,000,000 1,996,476 13,657.09 7.2600%
213 Twin Lakes Mobile Home Park SC 29715 Column 2,000,000 1,992,704 14,295.46 7.1250%
214 Antietam Village Center MD 21702 Column 2,000,000 1,990,431 14,456.14 7.2500%
223 The Nations Bank Building TX 77521 Column 1,850,000 1,840,216 15,176.14 7.7400%
224 Quail Ridge Apartments MI 48423 Column 1,840,000 1,829,799 12,130.55 6.9100%
228 Harold Gilstrap Shopping Center IN 47167 Column 1,800,000 1,786,750 12,676.13 6.9600%
229 Lakeside Apartments IL 61941 Column 1,800,000 1,781,950 14,003.72 6.3500%
230 Park Glen Apartments MD 21061 Column 1,750,000 1,744,104 11,525.50 6.9000%
231 St. Lucie Mobile Village FL 34956 Column 1,750,000 1,743,616 12,508.53 7.1250%
Mortgage Loan Schedule
<CAPTION>
Original Remaining Original Remaining
Term to Term to Amortization Amortization
Maturity Maturity Maturity Term Term
# Property Name (months) (8)(months) (8) Date (months) (months) ARD (9)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
18 Westchase Ranch Apartments (1C) 120 119 02/01/09 360 359
19 Westwood Village Apartments (1C) 120 119 02/01/09 360 359
20 Normandy Woods Apartments (1C) 120 119 02/01/09 360 359
21 Savoy Manor Apartments (1C) 120 119 02/01/09 360 359
22 San Marin Apartments (1C) 120 119 02/01/09 360 359
24 2294 Molly Pitcher Highway (1D) 120 116 11/01/08 360 356
25 5015 Campuswood Drive (1D) 120 116 11/01/08 360 356
26 5010 Campuswood Drive (1D) 120 116 11/01/08 360 356
27 5009 Campuswood Drive (1D) 120 116 11/01/08 360 356
37 White Station Tower 120 120 03/01/09 360 360
38 Holiday Inn New Orleans Veterans 120 119 02/01/09 300 299
41 The Shoppes at Longwood 240 238 01/01/19 300 298
44 Tiffany Square 120 118 01/01/09 360 358
45 The Mint Apartments 120 119 02/01/09 360 359
50 Parkshore Centre Office Building 120 116 11/01/08 360 356
65 Mahwah Business Park 120 113 08/01/08 300 293
67 Tech Center 29 Office/Warehouse Complex 120 119 02/01/09 300 299
69 Cranbrook Centre Apartments (1H) 120 118 01/01/09 360 358
70 Cranbrook Centre Office Buildings (1H) 120 118 01/01/09 360 358
75 Marycrest Shopping Center (2) 120 117 12/01/08 360 360
76 Elm Plaza Shopping Center 120 116 11/01/08 360 356
82 Tierra Verde Marine Center 120 112 07/01/23 300 292 07/01/08
84 Merchant's Square (3) 120 118 01/01/09 336 336
88 The Watermill Apartments 120 116 11/01/08 360 356
89 Brooks Corner 120 120 03/01/09 300 300
90 Hollywood Ardmore Apartments 120 117 12/01/08 360 357
99 New Franklin Apartments (4) 120 116 11/01/08 216 212
100 Windjammer Apartments 120 119 02/01/09 360 359
101 Woodlake Village Apartments 120 115 10/01/08 360 355
102 Comfort Inn - Hopewell, VA 120 117 12/01/08 300 297
106 Sagamore Court Apartments 120 118 01/01/09 360 358
107 Carriage Hill Apartments 120 117 12/01/08 360 357
111 Spruce Properties (1J) 120 117 12/01/08 360 357
112 Oak Grove Apartments (1J) 120 117 12/01/08 360 357
113 Aldrich Apartments (1J) 120 117 12/01/08 360 357
118 Mobile Estate Mobile Home Park 180 177 12/01/13 360 357
132 Century Plaza Strip Shopping Center (1K) 120 116 11/01/08 300 296
133 Albany Square Strip Shopping Center (1K) 120 116 11/01/08 300 296
134 Larrabee Complex 120 117 12/01/08 300 297
153 Woodland Park Office Building 120 117 12/01/08 360 357
155 Costa Mesa Mobile Estates 120 119 02/01/09 360 359
156 Greenville Village Mobile Home Park 120 118 01/01/09 300 298
160 The Amberton Apartments 120 116 11/01/08 360 356
168 Holiday Inn Express Auburn 120 117 12/01/08 300 297
175 Airport Business Center 120 117 12/01/08 360 357
179 High Point Village I Apartments 120 120 03/01/09 360 360
184 Park Lane Village Apartments (1L) 120 117 12/01/08 300 297
185 Rynearson Lane Village Apartments (1L) 120 117 12/01/08 300 297
186 Holiday Inn Express Ottawa 120 117 12/01/08 300 297
196 Linden Place Mobile Home Park 120 116 11/01/08 300 296
197 Moore Lake Commons Shopping Center 120 117 12/01/08 360 357
200 South Street Seaport Office Center 120 117 12/01/08 300 297
201 Hathaway Commerce Center 120 117 12/01/08 360 357
205 Devonshire Square Retail Center 120 117 12/01/08 300 297
209 Hillside View Apartments 240 237 12/01/18 240 237
210 Benihana Restaurant 120 119 02/01/09 300 299
211 Crosswinds Apartments 120 118 01/01/09 360 358
213 Twin Lakes Mobile Home Park 120 117 12/01/08 300 297
214 Antietam Village Center 120 116 11/01/08 300 296
223 The Nations Bank Building 120 117 12/01/08 240 237
224 Quail Ridge Apartments 120 113 08/01/08 360 353
228 Harold Gilstrap Shopping Center 120 114 09/01/08 300 294
229 Lakeside Apartments 180 176 11/01/13 216 212
230 Park Glen Apartments 120 116 11/01/08 360 356
231 St. Lucie Mobile Village 120 117 12/01/08 300 297
Mortgage Loan Schedule
<CAPTION>
Prepayment Provision Fee
as of Defeasance Simple/ Interest
# Property Name Origination (10) -11 Leasehold Accrual
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
18 Westchase Ranch Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
19 Westwood Village Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
20 Normandy Woods Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
21 Savoy Manor Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
22 San Marin Apartments (1C) L (9.5), O (0.5) Yes Fee Actual/360
24 2294 Molly Pitcher Highway (1D) L (9.5), O (0.5) Yes Fee Actual/360
25 5015 Campuswood Drive (1D) L (9.5), O (0.5) Yes Fee Actual/360
26 5010 Campuswood Drive (1D) L (9.5), O (0.5) Yes Fee Actual/360
27 5009 Campuswood Drive (1D) L (9.5), O (0.5) Yes Fee Actual/360
37 White Station Tower L (9.5), O (0.5) Yes Fee Actual/360
38 Holiday Inn New Orleans Veterans L (9.5), O (0.5) Yes Fee Actual/360
41 The Shoppes at Longwood L (10), YM 1% (9.75), O (0.25) No Fee 30/360
44 Tiffany Square L (9.5), O (0.5) Yes Fee Actual/360
45 The Mint Apartments L (9.5), O (0.5) Yes Fee Actual/360
50 Parkshore Centre Office Building L (9.5), O (0.5) Yes Fee Actual/360
65 Mahwah Business Park L (9.5), O (0.5) Yes Fee Actual/360
67 Tech Center 29 Office/Warehouse Complex L (9.5), O (0.5) Yes Fee Actual/360
69 Cranbrook Centre Apartments (1H) L (9.5), O (0.5) Yes Fee Actual/360
70 Cranbrook Centre Office Buildings (1H) L (9.5), O (0.5) Yes Fee Actual/360
75 Marycrest Shopping Center (2) L (9.5), O (0.5) Yes Fee Actual/360
76 Elm Plaza Shopping Center L (9.5), O (0.5) Yes Leasehold Actual/360
82 Tierra Verde Marine Center L (9.5), O (0.5) Yes Fee/Leasehold Actual/360
84 Merchant's Square (3) L (9.5), O (0.5) Yes Fee Actual/360
88 The Watermill Apartments L (9.5), O (0.5) Yes Fee Actual/360
89 Brooks Corner L (9.5), O (0.5) Yes Fee Actual/360
90 Hollywood Ardmore Apartments L (9.5), O (0.5) Yes Fee Actual/360
99 New Franklin Apartments (4) L (9.5), O (0.5) Yes Fee Actual/360
100 Windjammer Apartments L (9.5), O (0.5) Yes Fee Actual/360
101 Woodlake Village Apartments L (9.5), O (0.5) Yes Fee Actual/360
102 Comfort Inn - Hopewell, VA L (9.5), O (0.5) Yes Fee Actual/360
106 Sagamore Court Apartments L (9.5), O (0.5) Yes Fee Actual/360
107 Carriage Hill Apartments L (9.5), O (0.5) Yes Fee Actual/360
111 Spruce Properties (1J) L (9.5), O (0.5) Yes Fee Actual/360
112 Oak Grove Apartments (1J) L (9.5), O (0.5) Yes Fee Actual/360
113 Aldrich Apartments (1J) L (9.5), O (0.5) Yes Fee Actual/360
118 Mobile Estate Mobile Home Park L (14.5), O (0.5) Yes Fee Actual/360
132 Century Plaza Strip Shopping Center (1K) L (9.5), O (0.5) Yes Fee Actual/360
133 Albany Square Strip Shopping Center (1K) L (9.5), O (0.5) Yes Fee Actual/360
134 Larrabee Complex L (9.5), O (0.5) Yes Fee Actual/360
153 Woodland Park Office Building L (9.5), O (0.5) Yes Fee Actual/360
155 Costa Mesa Mobile Estates L (9.5), O (0.5) Yes Fee Actual/360
156 Greenville Village Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
160 The Amberton Apartments L (9.5), O (0.5) Yes Fee Actual/360
168 Holiday Inn Express Auburn L (9.5), O (0.5) Yes Fee Actual/360
175 Airport Business Center L (9.5), O (0.5) Yes Fee Actual/360
179 High Point Village I Apartments L (9.5), O (0.5) Yes Fee Actual/360
184 Park Lane Village Apartments (1L) L (9.5), O (0.5) Yes Fee Actual/360
185 Rynearson Lane Village Apartments (1L) L (9.5), O (0.5) Yes Fee Actual/360
186 Holiday Inn Express Ottawa L (9.5), O (0.5) Yes Fee Actual/360
196 Linden Place Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
197 Moore Lake Commons Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
200 South Street Seaport Office Center L (9.5), O (0.5) Yes Leasehold Actual/360
201 Hathaway Commerce Center L (9.5), O (0.5) Yes Fee Actual/360
205 Devonshire Square Retail Center L (9.5), O (0.5) Yes Fee Actual/360
209 Hillside View Apartments L (9.5), O (10.5) Yes Fee Actual/360
210 Benihana Restaurant L (9.5), O (0.5) Yes Fee Actual/360
211 Crosswinds Apartments L (9.5), O (0.5) Yes Fee Actual/360
213 Twin Lakes Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
214 Antietam Village Center L (9.5), O (0.5) Yes Fee Actual/360
223 The Nations Bank Building L (9.5), O (0.5) Yes Fee Actual/360
224 Quail Ridge Apartments L (9.5), O (0.5) Yes Fee Actual/360
228 Harold Gilstrap Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
229 Lakeside Apartments L (14.5), O (0.5) Yes Fee Actual/360
230 Park Glen Apartments L (9.5), O (0.5) Yes Fee Actual/360
231 St. Lucie Mobile Village L (9.5), O (0.5) Yes Fee Actual/360
</TABLE>
<PAGE>
Mortgage Loan Schedule (continued)
<TABLE>
<CAPTION>
# Property Name Address City County
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
232 Ravenscroft Apartments 25 Fairview Avenue Phillipsburg Warren
233 Coach Country Corral MHP 1921 208th Street East Spanaway Pierce
234 Seaside Village Shopping Center 4908 Seawall Boulevard Galveston Galveston
235 Sherwood Park Apartments 2300 - 2470 62nd Avenue East Fife Pierce
237 Holiday Inn Express Oglesby 900 Holiday Street Oglesby LaSalle
240 Saticoy-Royale Apartments 14630 Saticoy Street Van Nuys Los Angeles
241 Holiday/Park Riviera Mobile Home Park 319 Brady Drive Warner Robins Houston
242 Gottschalk's Department Store 372 Elm Avenue Auburn Placer
243 Justin Apartments 1039 Justin Avenue Glendale Los Angeles
244 Fountain Square Apartments 1925 8th Avenue Tuscaloosa Tuscaloosa
247 Market Plaza 2015 - 79 West 25th Street Cleveland Cuyahoga
248 Michigan Plaza & Bender Plaza (5) 726-32 E. Michigan / 205-225 E. Bender Hobbs Lea
249 Mockingbird Park Retail Building 5706 E. Mockingbird Lane Dallas Dallas
250 Poolesville Village Center 19710 Fisher Avenue Poolesville Montgomery
251 Citadel Square Shopping Center (6) 5060 Memorial Drive Stone Mountain DeKalb
253 Sherwood Mobile Home Estates 314 Tallman Circle Midway Park Onslow
254 Ware's Van & Storage Co. 1344 North West Boulevard Vineland Cumberland
255 Sunrise Terrace Mobile Home Park 7311 Chambers Creek Road West University Place Pierce
257 Woodlake Resort Village Apartments 6000 Woodlake Parkway San Antonio Bexar
258 Plantation Pines Apartments 2713 South Broadway Tyler Smith
260 Sunridge Apartments 6608 South Freeway Fort Worth Tarrant
261 Courtyards of Granbury 905 Paluxy Road Granbury Hood
262 Parkside Place Apartments 2833 Community Drive Dallas Dallas
263 University Apartments 3512 South University Drive Fort Worth Tarrant
265 Turtle Dove I Apartments 3516 Matilda Street Dallas Dallas
267 Valerie Apartments 6226 Valerie Street Houston Harris
268 Huddersfield Apartments 197 Pine Street Portland Cumberland
269 1457 & 1519 - 1527 Park Road, NW 1457 & 1519 - 1527 Park Road, NW Washington District of Columbia
270 Winter Garden Village Apartments 521 South Park Avenue Winter Garden Orange
271 Long Point Plaza Apartments 1742 Woodvine Drive Houston Harris
272 The Place of Tempe Apartments 607-627 West 19th Street Tempe Maricopa
273 Valley Garden Apartments 5236 & 5286 East Tropicana Avenue Las Vegas Clark
274 Devereaux Apartments 3616-3636 Warwick Boulevard Kansas City Jackson
275 Bloomingdale Shopping Center 47 Main Street Bloomingdale Passaic
276 Cottonwood Apartments 1714 Patton Lane Austin Travis
277 Royal North Apartments 4422 & 4525 Weaver Road Houston Harris
278 Turtle Dove II Apartments 5737 McCommas Street Dallas Dallas
Mortgage Loan Schedule (continued)
<CAPTION>
Mortgage Original
Zip Loan Principal Cut-off Date Monthly Mortgage
# Property Name State Code Seller Balance Balance (7) Payment Rate
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
232 Ravenscroft Apartments NJ 08865 Column 1,750,000 1,740,783 11,107.27 6.5400%
233 Coach Country Corral MHP WA 98387 Column 1,750,000 1,733,966 12,581.55 7.1900%
234 Seaside Village Shopping Center TX 77551 Column 1,725,000 1,722,395 13,176.99 7.8800%
235 Sherwood Park Apartments WA 98424 Column 1,700,000 1,696,004 11,597.00 7.2500%
237 Holiday Inn Express Oglesby IL 61348 Column 1,700,000 1,693,674 12,015.25 7.0000%
240 Saticoy-Royale Apartments CA 91405 Column 1,670,000 1,664,748 11,392.34 7.2500%
241 Holiday/Park Riviera Mobile Home Park GA 31088 Column 1,645,000 1,637,436 12,156.40 7.5000%
242 Gottschalk's Department Store CA 95603 Column 1,610,000 1,602,597 11,897.76 7.5000%
243 Justin Apartments CA 91201 Column 1,600,000 1,597,176 10,914.82 7.2500%
244 Fountain Square Apartments AL 35401 Column 1,600,000 1,595,872 11,564.91 7.2500%
247 Market Plaza OH 44113 Column 1,575,000 1,563,876 11,945.93 7.0000%
248 Michigan Plaza & Bender Plaza (5) NM 88240 Column 1,550,000 1,546,334 11,850.42 7.8900%
249 Mockingbird Park Retail Building TX 75206 Column 1,540,000 1,534,709 10,039.65 6.8000%
250 Poolesville Village Center MD 20837 Column 1,525,000 1,520,437 10,663.02 7.5000%
251 Citadel Square Shopping Center (6) GA 30083 Column 1,500,000 1,500,000 11,826.75 8.2500%
253 Sherwood Mobile Home Estates NC 28544 Column 1,500,000 1,492,680 10,721.60 7.1250%
254 Ware's Van & Storage Co. NJ 08360 Column 1,500,000 1,489,399 12,314.23 7.7500%
255 Sunrise Terrace Mobile Home Park WA 98467 Column 1,450,000 1,445,275 9,715.15 7.0700%
257 Woodlake Resort Village Apartments TX 78244 Column 1,400,000 1,393,722 9,607.51 7.3100%
258 Plantation Pines Apartments TX 75701 Column 1,350,000 1,347,949 10,241.29 7.8000%
260 Sunridge Apartments TX 76134 Column 1,345,000 1,341,749 10,141.52 7.7300%
261 Courtyards of Granbury TX 76048 Column 1,300,000 1,296,871 9,827.81 7.7600%
262 Parkside Place Apartments TX 75220 Column 1,300,000 1,290,235 10,274.89 7.2500%
263 University Apartments TX 76109 Column 1,260,000 1,258,018 9,209.08 7.3750%
265 Turtle Dove I Apartments TX 75206 Column 1,225,000 1,225,000 9,172.50 7.6500%
267 Valerie Apartments TX 77081 Column 1,072,000 1,070,329 7,908.04 7.4800%
268 Huddersfield Apartments ME 04103 Column 1,060,000 1,058,366 7,916.23 7.6200%
269 1457 & 1519 - 1527 Park Road, NW DC 20010 Column 1,050,000 1,048,398 7,930.95 7.7500%
270 Winter Garden Village Apartments FL 34787 Column 1,000,000 997,506 7,389.91 7.5000%
271 Long Point Plaza Apartments TX 77055 Column 960,000 951,432 7,733.69 7.5000%
272 The Place of Tempe Apartments AZ 85281 Column 900,000 898,616 6,738.98 7.6500%
273 Valley Garden Apartments NV 89122 Column 900,000 896,907 6,650.92 7.5000%
274 Devereaux Apartments MO 64111 Column 888,000 886,649 6,724.82 7.7800%
275 Bloomingdale Shopping Center NJ 07403 Column 800,000 798,005 5,911.93 7.5000%
276 Cottonwood Apartments TX 78723 Column 800,000 797,234 6,912.24 8.4400%
277 Royal North Apartments TX 77016 Column 722,500 718,072 5,600.32 8.0500%
278 Turtle Dove II Apartments TX 75206 Column 675,000 675,000 5,054.23 7.6500%
Mortgage Loan Schedule (continued)
<CAPTION>
Original Remaining Original Remaining
Term to Term to Amortization Amortization
Maturity Maturity Maturity Term Term
# Property Name (months) (8)(months) (8) Date (months) (months) ARD (9)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
232 Ravenscroft Apartments 120 114 09/01/08 360 354
233 Coach Country Corral MHP 120 112 07/01/08 300 292
234 Seaside Village Shopping Center 120 119 02/01/09 300 299
235 Sherwood Park Apartments 180 177 12/01/13 360 357
237 Holiday Inn Express Oglesby 120 117 12/01/08 300 297
240 Saticoy-Royale Apartments 120 116 11/01/08 360 356
241 Holiday/Park Riviera Mobile Home Park 120 116 11/01/08 300 296
242 Gottschalk's Department Store 120 116 11/01/08 300 296
243 Justin Apartments 120 118 01/01/09 360 358
244 Fountain Square Apartments 120 118 01/01/09 300 298
247 Market Plaza 120 116 11/01/08 252 248
248 Michigan Plaza & Bender Plaza (5) 120 118 01/01/09 300 298
249 Mockingbird Park Retail Building 120 116 11/01/08 360 356
250 Poolesville Village Center 120 116 11/01/08 360 356
251 Citadel Square Shopping Center (6) 120 116 11/01/08 300 300
253 Sherwood Mobile Home Estates 120 116 11/01/08 300 296
254 Ware's Van & Storage Co. 120 116 11/01/08 240 236
255 Sunrise Terrace Mobile Home Park 120 116 11/01/08 360 356
257 Woodlake Resort Village Apartments 120 114 09/01/08 360 354
258 Plantation Pines Apartments 120 119 02/01/09 300 299
260 Sunridge Apartments 120 118 01/01/09 300 298
261 Courtyards of Granbury 84 82 01/01/06 300 298
262 Parkside Place Apartments 120 116 11/01/08 240 236
263 University Apartments 120 119 02/01/09 300 299
265 Turtle Dove I Apartments 120 120 03/01/09 300 300
267 Valerie Apartments 120 119 02/01/09 300 299
268 Huddersfield Apartments 120 119 02/01/09 300 299
269 1457 & 1519 - 1527 Park Road, NW 120 119 02/01/09 300 299
270 Winter Garden Village Apartments 120 118 01/01/09 300 298
271 Long Point Plaza Apartments 120 115 10/01/08 240 235
272 The Place of Tempe Apartments 120 119 02/01/09 300 299
273 Valley Garden Apartments 120 117 12/01/08 300 297
274 Devereaux Apartments 120 119 02/01/09 300 299
275 Bloomingdale Shopping Center 120 118 01/01/09 300 298
276 Cottonwood Apartments 240 238 01/01/19 240 238
277 Royal North Apartments 120 114 09/01/08 300 294
278 Turtle Dove II Apartments 120 120 03/01/09 300 300
Mortgage Loan Schedule (continued)
<CAPTION>
Prepayment Provision Fee
as of Defeasance Simple/ Interest
# Property Name Origination (10) -11 Leasehold Accrual
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
232 Ravenscroft Apartments L (9.5), O (0.5) Yes Fee Actual/360
233 Coach Country Corral MHP L (9.5), O (0.5) Yes Fee Actual/360
234 Seaside Village Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
235 Sherwood Park Apartments L (14.5), O (0.5) Yes Fee Actual/360
237 Holiday Inn Express Oglesby L (9.5), O (0.5) Yes Fee Actual/360
240 Saticoy-Royale Apartments L (9.5), O (0.5) Yes Fee Actual/360
241 Holiday/Park Riviera Mobile Home Park L (9.5), O (0.5) Yes Fee Actual/360
242 Gottschalk's Department Store L (3), YM 1% (6.58), O (0.42) No Fee Actual/360
243 Justin Apartments L (9.5), O (0.5) Yes Fee Actual/360
244 Fountain Square Apartments L (9.5), O (0.5) Yes Fee Actual/360
247 Market Plaza L (9.5), O (0.5) Yes Fee Actual/360
248 Michigan Plaza & Bender Plaza (5) L (9.5), O (0.5) Yes Fee Actual/360
249 Mockingbird Park Retail Building L (9.5), O (0.5) Yes Leasehold Actual/360
250 Poolesville Village Center L (9.5), O (0.5) Yes Fee Actual/360
251 Citadel Square Shopping Center (6) L (9.5), O (0.5) Yes Fee Actual/360
253 Sherwood Mobile Home Estates L (9.5), O (0.5) Yes Fee Actual/360
254 Ware's Van & Storage Co. L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
255 Sunrise Terrace Mobile Home Park L (2.25), O (7.75) No Fee Actual/360
257 Woodlake Resort Village Apartments L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
258 Plantation Pines Apartments L (9.5), O (0.5) Yes Fee Actual/360
260 Sunridge Apartments L (9.5), O (0.5) Yes Fee Actual/360
261 Courtyards of Granbury L (6.5), O (0.5) Yes Fee Actual/360
262 Parkside Place Apartments L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
263 University Apartments L (9.5), O (0.5) Yes Fee Actual/360
265 Turtle Dove I Apartments L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
267 Valerie Apartments L (9.5), O (0.5) Yes Fee Actual/360
268 Huddersfield Apartments L (9.5), O (0.5) Yes Fee Actual/360
269 1457 & 1519 - 1527 Park Road, NW L (9.5), O (0.5) Yes Fee Actual/360
270 Winter Garden Village Apartments L (9.5), O (0.5) Yes Fee Actual/360
271 Long Point Plaza Apartments L (3), YM 1% (6.58), O (0.42) No Fee Actual/360
272 The Place of Tempe Apartments L (9.5), O (0.5) Yes Fee Actual/360
273 Valley Garden Apartments L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
274 Devereaux Apartments L (9.5), O (0.5) Yes Fee Actual/360
275 Bloomingdale Shopping Center L (9.5), O (0.5) Yes Fee Actual/360
276 Cottonwood Apartments L (19.5), O (0.5) Yes Fee Actual/360
277 Royal North Apartments L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
278 Turtle Dove II Apartments L (3), YM 1% (6.5), O (0.5) No Fee Actual/360
</TABLE>
(1C) A Single Mortgage Note is secured by Westchase Ranch Apartments, Westwood
Village Apartments, Normandy Woods Apartments, Savoy Manor Apartments and
San Marin Apartments, respectively.
(1D) A Single Mortgage Note is secured by 2294 Molly Pitcher Highway, 5015
Campuswood Drive, 5010 Campuswood Drive and 5009 Campuswood Drive,
respectively.
(1H) The Mortgage Loans secured by Cranbrook Centre Apartments and Cranbrook
Centre Office Buildings, respectively, are cross-collateralized and
cross-defaulted.
(1J) A Single Mortgage Note is secured by Spruce Properties, Oak Grove
Apartments and Aldrich Apartments, respectively. The Mortgage Loan secured
by Spruce Properties contains two properties that are operated as one.
(1K) The Mortgage Loans secured by Century Plaza Strip Shopping Center and
Albany Square Strip Shopping Center, respectively, are cross-collateralized
and cross-defaulted.
(1L) A Single Mortgage Note secured by Park Lane Village Apartments and
Rynearson Lane Village Apartments, respectively.
(2) Marycrest Shopping Center has an interest only period of 24 months from
origination and thereafter is scheduled to amortize over 360 months with
the payment presented reflecting the amount due during the amortization
term.
(3) Merchant's Square has an interest only period of 24 months from origination
and thereafter is scheduled to amortize over 336 months with the payment
presented reflecting the amount due during the amortization term.
(4) The Mortgage Loan secured by New Franklin Apartments contains four
properties that are operated as one.
(5) The Mortgage Loan secured by Michigan Plaza & Bender Plaza contains two
properties that are operated as one.
(6) Citadel Square Shopping Center has an interest only period of 36 months
from origination and thereafter is scheduled to amortize over 300 months
with the payment presented reflecting the amount due during the
amortization term.
(7) Assumes a Cut-off Date of March 1, 1999.
(8) In the case of the Anticipated Repayment Date loans, the Anticipated
Repayment Date is assumed to be the maturity date for the purposes of the
indicated column.
(9) Anticipated Repayment Date.
(10) Prepayment Provision as of Origination:
L (x) = Lockout or Defeasance for x years
YM A% (x) = Greater of Yield Maintenance Premium and A% Prepayment for x
years
O (x) = Prepayable at par for x years
(11) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
<PAGE>
EXHIBIT B-1B
SCHEDULE OF GECA MORTGAGE LOANS
B-1B-1
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Hampton Inn - Elmsford (1A) 200 Tarrytown Road Elmsford
2 Quality Suites - Charleston (1A) 5224 N. Arco Ln Charleston
3 Courtyard by Marriott - Ann Arbor (1A) 3205 Boardwalk Ann Arbor
4 Residence Inn - Phoenix (1A) 8242 N. Black Canyon Phoenix
5 Homewood Suites - Cary (1A) 100 MacAlyson Ct. Cary
6 Hampton Inn & Suites - Gwinnett (1A) 1725 Pineland Rd. Duluth
7 Hampton Inn - Raleigh (1A) 6209 Glenwood Drive Raleigh
8 Comfort Suites - Orlando (1A) 9350 Turkey Ln Orlando
9 Hampton Inn - Perimeter (1A) 769 Hammond Drive Atlanta
10 Hampton Inn - Charlotte, NC (1A) 8419 N. Tyron St Charlotte
11 Courtyard by Marriott - Wilmington (1A) 151 Van Kampen Blvd. Wilmington
12 Hampton Inn - West Springfield (1A) 1011 Riverdale St. West Springfield
13 Homewood Suites - Clear Lake (1A) 401 Bay Area Blvd. Houston
14 Comfort Inn - Charleston (1A) 144 Bee Street Charleston
15 Kendale Lakes Plaza (1B) 14091 North Kendall Drive (Southwest 88th Street) West Kendall
16 Cypress Creek Station (1B) N/W/C Cypress Creek Road & North Andrews Avenue Fort Lauderdale
17 Oakwood Business Center (1B) Various Hollywood
23 Country Squire Apartments - South 8056 Country Squire Lane Cordova
28 Fair Lakes Promenade 12169-12249 Fair Lakes Parkway Fair Oaks
29 Keller Oaks Apartments (1E) 2121 Marsh Lane Carrollton
30 Sycamore Hill Apartments (1E) 7500 South Hulen St. Fort Worth
31 Clarendon Apartments (1E) 3800 N. Beltline Rd. Irving
32 Woodchase Condominiums (1E) 4060 N. Beltline Rd. Irving
33 Dallas Design Center Portfolio Various Dallas
34 Assembly Square Office Building 5 Middlesex Avenue Somerville
35 Spicetree Apartments 4854 Washtenaw Avenue Ann Arbor
36 Lamplighter Mobile Home Park 4201 North First Street San Jose
39 The Links at Bixby 11500 Links Court/11500 Block of South Memorial Bixby
40 Southwood Apartments 5601 Paramount Blvd. Long Beach
42 Edentree Apartments 1721 E. Frankford Rd. Carrollton
43 Becker Village Mall Becker Drive & East 10th Street Roanoke Rapids
46 River Park Shopping Center 4240 East Judge Perez Rd. Mereaux
47 Rancho Destino Apartments 4355 S. Durango Drive Las Vegas
48 Conestoga Mobile Home Park 1199 East Santa Fe Gardner
49 Huntington Chase Apartments 1010 S. Houston Lake Boulevard Warner Robins
51 Kenwood Pavilion 8115-8133 Montgomery Rd. Cincinnati
52 Newsome Park Apartments 4801 Marshall Avenue Newport News
53 Princeton Court Apartments (1F) 31 Andrew Street Manchester
54 Pinewood Estates Apartments (1F) 135 English Village Rd. Manchester
55 Arbor Court Apartments (1F) 37 Hosmer Street Marlborough
56 U-Store of Brighton Self Storage Facility (1G) 5850 Whitmore Lake Dr. Brighton
57 U-Store of South Lyon Self Storage Facility (1G) 271 Lottie St. South Lyon
58 U-Store of Saline Self Storage Facility (1G) 1145 Industrial Park Dr. Saline
59 U-Store of Davison Self Storage Facility (1G) 10026 Lapeer Rd. Davison
60 U-Store of Holly Self Storage Facility (1G) 4228 Grange Hall Rd. Holly
61 U-Store of Jackson Self Storage Facility (1G) 155 N. Dettman Jackson
62 Birches Apartments 195 Fries Mill Rd. Washington Township
63 Hollywood Plaza 4627-4641 Santa Monica Blvd. & 1100-1134 N. Vermont Ave. Los Angeles
64 50-60 Worcester Rd. 50-60 Worcester Rd. Framingham
66 Silvernail Shopping Center 1900 Silvernail Rd. Waukesha
68 Centre North Shopping Center 8600 East 96th Street Fishers
71 Lubbock Shopping Parkade 7020 Quaker Avenue Lubbock
72 Marin Club Apartments 2261 West Valley Blvd Pomona
73 Prunedale Center 7915-8093 San Miguel Canyon Rd. & 17760-17880 Moro Rd. Prunedale
74 Lamplighter Ontario MHP 2139 East Fourth Street Ontario
77 Century Plaza East 1790-1884 Avenue J Lancaster
78 Keller Springs Tech Center 3220 Keller Springs Rd. Carrollton
79 Mobile Gardens/Holly View Mobile Home Park (1I) 601 N. Dual Highway & 1020/1030 Brickyard Rd. Seaford Hundred
80 Stony Chase/Rock Creek Mobile Home Park (1I) ES Bouchelle Rd. Elkton
81 Briarwood Manor (1I) Trussum Pond Rd. Little Creek Hundred
83 Aurora Square 15801-15925 Westminister Way North Seattle
85 Northwood Hills Shopping Center 8010-8152 Spring Valley Rd. Dallas
86 36th Street Office Center 5251-3 36th Street Grand Rapids
87 Fifth Avenue Apartments 11530 Vance Jackson Rd. San Antonio
91 Chasewood Apartments 3420 South Coulter Amarillo
Mortgage Loan Schedule
<CAPTION>
Mortgage Original
Zip Loan Principal
# Property Name County State Code Seller Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Hampton Inn - Elmsford (1A) Westchester NY 10523 G.E. Capital Access $ 7,625,000
2 Quality Suites - Charleston (1A) Charleston SC 29418 G.E. Capital Access 6,300,000
3 Courtyard by Marriott - Ann Arbor (1A) Washtenaw MI 48108 G.E. Capital Access 6,300,000
4 Residence Inn - Phoenix (1A) Maricopa AZ 85051 G.E. Capital Access 6,300,000
5 Homewood Suites - Cary (1A) Wake NC 27511 G.E. Capital Access 6,025,000
6 Hampton Inn & Suites - Gwinnett (1A) Gwinnett GA 30136 G.E. Capital Access 5,400,000
7 Hampton Inn - Raleigh (1A) Wake NC 27612 G.E. Capital Access 5,300,000
8 Comfort Suites - Orlando (1A) Orange FL 32819 G.E. Capital Access 5,175,000
9 Hampton Inn - Perimeter (1A) Fulton GA 30136 G.E. Capital Access 5,000,000
10 Hampton Inn - Charlotte, NC (1A) Mecklenburg NC 28262 G.E. Capital Access 4,575,000
11 Courtyard by Marriott - Wilmington (1A) New Hanover NC 28403 G.E. Capital Access 4,275,000
12 Hampton Inn - West Springfield (1A) Hampden MA 01089 G.E. Capital Access 3,700,000
13 Homewood Suites - Clear Lake (1A) Harris TX 77058 G.E. Capital Access 3,450,000
14 Comfort Inn - Charleston (1A) Charleston SC 29401 G.E. Capital Access 1,575,000
15 Kendale Lakes Plaza (1B) Miami-Dade FL 33426 G.E. Capital Access 29,613,000
16 Cypress Creek Station (1B) Broward FL 33309 G.E. Capital Access 23,856,000
17 Oakwood Business Center (1B) Broward FL 33020 G.E. Capital Access 10,408,000
23 Country Squire Apartments - South Shelby TN 38018 G.E. Capital Access 30,500,000
28 Fair Lakes Promenade Fairfax VA 22033 G.E. Capital Access 21,000,000
29 Keller Oaks Apartments (1E) Dallas TX 75006 G.E. Capital Access 7,167,501
30 Sycamore Hill Apartments (1E) Tarrant TX 76054 G.E. Capital Access 6,210,476
31 Clarendon Apartments (1E) Dallas TX 75038 G.E. Capital Access 4,561,137
32 Woodchase Condominiums (1E) Dallas TX 75038 G.E. Capital Access 2,410,887
33 Dallas Design Center Portfolio Dallas TX 75207 G.E. Capital Access 17,500,000
34 Assembly Square Office Building Middlesex MA 2145 G.E. Capital Access 16,782,000
35 Spicetree Apartments Washtenaw MI 48108 G.E. Capital Access 16,640,000
36 Lamplighter Mobile Home Park Santa Clara CA 95134 G.E. Capital Access 16,000,000
39 The Links at Bixby Tulsa OK 74008 G.E. Capital Access 14,700,000
40 Southwood Apartments Los Angeles CA 90805 G.E. Capital Access 14,500,000
42 Edentree Apartments Denton TX 75007 G.E. Capital Access 11,480,000
43 Becker Village Mall Halifax NC 27870 G.E. Capital Access 11,344,000
46 River Park Shopping Center St. Bernard Parish LA 70075 G.E. Capital Access 10,950,000
47 Rancho Destino Apartments Clark NV 89117 G.E. Capital Access 10,200,000
48 Conestoga Mobile Home Park Johnson KS 66030 G.E. Capital Access 9,875,000
49 Huntington Chase Apartments Houston GA 31088 G.E. Capital Access 9,700,000
51 Kenwood Pavilion Hamilton OH 45242 G.E. Capital Access 8,880,000
52 Newsome Park Apartments None VA 23607 G.E. Capital Access 8,500,000
53 Princeton Court Apartments (1F) Hillsborough NH 03104 G.E. Capital Access 3,884,214
54 Pinewood Estates Apartments (1F) Hillsborough NH 03102 G.E. Capital Access 2,390,286
55 Arbor Court Apartments (1F) Middlesex MA 01752 G.E. Capital Access 2,091,500
56 U-Store of Brighton Self Storage Facility (1G) Livingston MI 48116 G.E. Capital Access 2,871,590
57 U-Store of South Lyon Self Storage Facility (1G) Oakland MI 48178 G.E. Capital Access 1,525,067
58 U-Store of Saline Self Storage Facility (1G) Washtenaw MI 48176 G.E. Capital Access 1,391,159
59 U-Store of Davison Self Storage Facility (1G) Genesee MI 48423 G.E. Capital Access 996,873
60 U-Store of Holly Self Storage Facility (1G) Oakland MI 48442 G.E. Capital Access 922,480
61 U-Store of Jackson Self Storage Facility (1G) Jackson MI 49202 G.E. Capital Access 572,830
62 Birches Apartments Gloucester NJ 8012 G.E. Capital Access 8,186,000
63 Hollywood Plaza Los Angeles CA 90029 G.E. Capital Access 8,100,000
64 50-60 Worcester Rd. Middlesex MA 1701 G.E. Capital Access 8,000,000
66 Silvernail Shopping Center Milwaukee WI 53072 G.E. Capital Access 7,808,000
68 Centre North Shopping Center Hamilton IN 46038 G.E. Capital Access 7,600,000
71 Lubbock Shopping Parkade Lubbock TX 79424 G.E. Capital Access 7,378,000
72 Marin Club Apartments Los Angeles CA 91768 G.E. Capital Access 7,360,000
73 Prunedale Center Monterey CA 93901 G.E. Capital Access 7,273,000
74 Lamplighter Ontario MHP Riverside CA 91764 G.E. Capital Access 7,150,000
77 Century Plaza East Los Angeles CA 93535 G.E. Capital Access 6,937,000
78 Keller Springs Tech Center Dallas TX 75006 G.E. Capital Access 6,900,000
79 Mobile Gardens/Holly View Mobile Home Park (1I) Sussex DE 19973 G.E. Capital Access 3,640,000
80 Stony Chase/Rock Creek Mobile Home Park (1I) Cecil MD 21921 G.E. Capital Access 1,920,000
81 Briarwood Manor (1I) Sussex DE 19956 G.E. Capital Access 1,340,000
83 Aurora Square King WA 98133 G.E. Capital Access 6,720,000
85 Northwood Hills Shopping Center Dallas TX 75240 G.E. Capital Access 6,500,000
86 36th Street Office Center Kent MI 60521 G.E. Capital Access 6,500,000
87 Fifth Avenue Apartments Bexar TX 75230 G.E. Capital Access 6,400,000
91 Chasewood Apartments Randall TX 79109 G.E. Capital Access 6,160,000
Mortgage Loan Schedule
<CAPTION>
Original Remaining
Term to Term to
Cut-off Date Monthly Mortgage Maturity Maturity Maturity
# Property Name Balance(7) Payment Rate (months)(8) (months)(8) Date
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 Hampton Inn - Elmsford (1A) $ 7,598,233 $55,729.57 7.3750% 120 117 12/01/23
2 Quality Suites - Charleston (1A) 6,277,885 46,045.42 7.3750% 120 117 12/01/23
3 Courtyard by Marriott - Ann Arbor (1A) 6,277,885 46,045.42 7.3750% 120 117 12/01/23
4 Residence Inn - Phoenix (1A) 6,277,885 46,045.42 7.3750% 120 117 12/01/23
5 Homewood Suites - Cary (1A) 6,003,850 44,035.50 7.3750% 120 117 12/01/23
6 Hampton Inn & Suites - Gwinnett (1A) 5,381,044 39,467.50 7.3750% 120 117 12/01/23
7 Hampton Inn - Raleigh (1A) 5,281,395 38,736.62 7.3750% 120 117 12/01/23
8 Comfort Suites - Orlando (1A) 5,156,834 37,823.02 7.3750% 120 117 12/01/23
9 Hampton Inn - Perimeter (1A) 4,982,448 36,543.98 7.3750% 120 117 12/01/23
10 Hampton Inn - Charlotte, NC (1A) 4,558,940 33,437.74 7.3750% 120 117 12/01/23
11 Courtyard by Marriott - Wilmington (1A) 4,259,993 31,245.11 7.3750% 120 117 12/01/23
12 Hampton Inn - West Springfield (1A) 3,687,012 27,042.55 7.3750% 120 117 12/01/23
13 Homewood Suites - Clear Lake (1A) 3,437,889 25,215.35 7.3750% 120 117 12/01/23
14 Comfort Inn - Charleston (1A) 1,569,471 11,511.35 7.3750% 120 117 12/01/23
15 Kendale Lakes Plaza (1B) 29,580,388 221,016.99 8.1800% 120 119 02/01/29
16 Cypress Creek Station (1B) 23,829,728 178,049.55 8.1800% 120 119 02/01/29
17 Oakwood Business Center (1B) 10,396,538 77,680.24 8.1800% 120 119 02/01/29
23 Country Squire Apartments - South 30,446,295 195,799.29 6.6500% 120 118 01/01/09
28 Fair Lakes Promenade 20,950,739 143,399.48 7.2600% 120 117 12/01/08
29 Keller Oaks Apartments (1E) 7,143,351 47,205.17 6.9000% 120 116 11/01/28
30 Sycamore Hill Apartments (1E) 6,189,551 40,902.21 6.9000% 120 116 11/01/28
31 Clarendon Apartments (1E) 4,545,769 30,039.65 6.9000% 120 116 11/01/28
32 Woodchase Condominiums (1E) 2,402,764 15,878.10 6.9000% 120 116 11/01/28
33 Dallas Design Center Portfolio 17,479,737 122,482.39 7.5100% 120 119 02/01/09
34 Assembly Square Office Building 16,753,085 116,195.18 7.4000% 120 118 01/01/09
35 Spicetree Apartments 16,582,208 107,926.72 6.7500% 84 80 11/01/28
36 Lamplighter Mobile Home Park 15,971,898 109,473.97 7.2800% 120 118 01/01/09
39 The Links at Bixby 14,487,822 103,334.57 6.9400% 300 288 03/01/23
40 Southwood Apartments 14,474,162 98,326.15 7.1900% 84 82 01/01/06
42 Edentree Apartments 11,480,000 78,625.54 7.2900% 120 120 03/01/09
43 Becker Village Mall 11,319,037 79,941.24 7.5800% 120 117 12/01/08
46 River Park Shopping Center 10,925,904 77,164.72 7.5800% 120 117 12/01/08
47 Rancho Destino Apartments 10,181,999 69,581.98 7.2500% 120 118 01/01/09
48 Conestoga Mobile Home Park 9,841,203 64,509.22 6.8200% 120 116 11/01/08
49 Huntington Chase Apartments 9,666,997 63,560.14 6.8500% 120 116 11/01/08
51 Kenwood Pavilion 8,869,751 62,394.56 7.5500% 120 119 02/01/09
52 Newsome Park Apartments 8,459,047 56,379.56 6.9700% 120 114 09/01/28
53 Princeton Court Apartments (1F) 3,877,564 26,999.58 7.4400% 120 118 01/01/09
54 Pinewood Estates Apartments (1F) 2,386,193 16,615.13 7.4400% 120 118 01/01/09
55 Arbor Court Apartments (1F) 2,087,919 14,538.24 7.4400% 120 118 01/01/09
56 U-Store of Brighton Self Storage Facility (1G) 2,867,278 22,068.37 7.9500% 120 119 02/01/09
57 U-Store of South Lyon Self Storage Facility (1G) 1,522,777 11,720.25 7.9500% 120 119 02/01/09
58 U-Store of Saline Self Storage Facility (1G) 1,389,070 10,691.15 7.9500% 120 119 02/01/09
59 U-Store of Davison Self Storage Facility (1G) 995,376 7,661.04 7.9500% 120 119 02/01/09
60 U-Store of Holly Self Storage Facility (1G) 921,094 7,089.32 7.9500% 120 119 02/01/09
61 U-Store of Jackson Self Storage Facility (1G) 571,970 4,402.24 7.9500% 120 119 02/01/09
62 Birches Apartments 8,172,163 57,349.85 7.5200% 120 118 01/01/09
63 Hollywood Plaza 8,074,019 54,707.95 7.1500% 120 116 11/01/28
64 50-60 Worcester Rd. 7,990,860 56,926.49 7.6800% 120 119 02/01/09
66 Silvernail Shopping Center 7,798,787 53,423.29 7.2800% 120 119 02/01/09
68 Centre North Shopping Center 7,576,100 51,845.40 7.2500% 120 116 11/01/08
71 Lubbock Shopping Parkade 7,365,975 52,856.90 7.7500% 120 118 01/01/09
72 Marin Club Apartments 7,347,967 52,626.26 7.7300% 120 118 01/01/09
73 Prunedale Center 7,250,128 49,614.68 7.2500% 120 116 11/01/28
74 Lamplighter Ontario MHP 7,137,562 49,212.83 7.3400% 60 58 01/01/04
77 Century Plaza East 6,919,868 46,152.03 7.0000% 120 117 12/01/08
78 Keller Springs Tech Center 6,888,130 47,821.29 7.4100% 120 118 01/01/09
79 Mobile Gardens/Holly View Mobile Home Park (1I) 3,627,197 23,439.85 6.6800% 120 116 11/01/28
80 Stony Chase/Rock Creek Mobile Home Park (1I) 1,913,247 12,363.88 6.6800% 120 116 11/01/28
81 Briarwood Manor (1I) 1,335,287 8,628.96 6.6800% 120 116 11/01/28
83 Aurora Square 6,703,404 44,708.33 7.0000% 120 117 12/01/08
85 Northwood Hills Shopping Center 6,492,510 45,760.91 7.5700% 120 119 02/01/09
86 36th Street Office Center 6,489,065 45,671.69 7.5500% 120 118 01/01/09
87 Fifth Avenue Apartments 6,388,541 43,269.28 7.1600% 120 118 01/01/09
91 Chasewood Apartments 6,149,198 42,189.31 7.2900% 120 118 01/01/09
Mortgage Loan Schedule
<CAPTION>
Original Remaining
Amortization Amortization Prepayment
Term Term Provision as of
# Property Name (months) (months) ARD (9) Origination (10)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Hampton Inn - Elmsford (1A) 300 297 12/01/08 L (9.75), O (0.25)
2 Quality Suites - Charleston (1A) 300 297 12/01/08 L (9.75), O (0.25)
3 Courtyard by Marriott - Ann Arbor (1A) 300 297 12/01/08 L (9.75), O (0.25)
4 Residence Inn - Phoenix (1A) 300 297 12/01/08 L (9.75), O (0.25)
5 Homewood Suites - Cary (1A) 300 297 12/01/08 L (9.75), O (0.25)
6 Hampton Inn & Suites - Gwinnett (1A) 300 297 12/01/08 L (9.75), O (0.25)
7 Hampton Inn - Raleigh (1A) 300 297 12/01/08 L (9.75), O (0.25)
8 Comfort Suites - Orlando (1A) 300 297 12/01/08 L (9.75), O (0.25)
9 Hampton Inn - Perimeter (1A) 300 297 12/01/08 L (9.75), O (0.25)
10 Hampton Inn - Charlotte, NC (1A) 300 297 12/01/08 L (9.75), O (0.25)
11 Courtyard by Marriott - Wilmington (1A) 300 297 12/01/08 L (9.75), O (0.25)
12 Hampton Inn - West Springfield (1A) 300 297 12/01/08 L (9.75), O (0.25)
13 Homewood Suites - Clear Lake (1A) 300 297 12/01/08 L (9.75), O (0.25)
14 Comfort Inn - Charleston (1A) 300 297 12/01/08 L (9.75), O (0.25)
15 Kendale Lakes Plaza (1B) 360 359 02/01/09 L (9.75), O (0.25)
16 Cypress Creek Station (1B) 360 359 02/01/09 L (9.75), O (0.25)
17 Oakwood Business Center (1B) 360 359 02/01/09 L (9.75), O (0.25)
23 Country Squire Apartments - South 360 358 L (3), YM 1% (6.5), O (0.5)
28 Fair Lakes Promenade 360 357 L (9.75), O (0.25)
29 Keller Oaks Apartments (1E) 360 356 11/01/08 L (9.75), O (0.25)
30 Sycamore Hill Apartments (1E) 360 356 11/01/08 L (9.75), O (0.25)
31 Clarendon Apartments (1E) 360 356 11/01/08 L (9.75), O (0.25)
32 Woodchase Condominiums (1E) 360 356 11/01/08 L (9.75), O (0.25)
33 Dallas Design Center Portfolio 360 359 L (9.75), O (0.25)
34 Assembly Square Office Building 360 358 L (9.75), O (0.25)
35 Spicetree Apartments 360 356 11/01/05 L (6.67), O (0.33)
36 Lamplighter Mobile Home Park 360 358 L (9.5), O (0.5)
39 The Links at Bixby 300 288 L (9.92), YM 1% (10.08), O (5)
40 Southwood Apartments 360 358 L (6.5), O (0.5)
42 Edentree Apartments 360 360 L (9.75), O (0.25)
43 Becker Village Mall 360 357 L (9.75), O (0.25)
46 River Park Shopping Center 360 357 L (9.75), O (0.25)
47 Rancho Destino Apartments 360 358 L (9.75), O (0.25)
48 Conestoga Mobile Home Park 360 356 L (9.5), O (0.5)
49 Huntington Chase Apartments 360 356 L (9.75), O (0.25)
51 Kenwood Pavilion 360 359 L (9.75), O (0.25)
52 Newsome Park Apartments 360 354 09/01/08 L (9.75), O (0.25)
53 Princeton Court Apartments (1F) 360 358 L (9.75), O (0.25)
54 Pinewood Estates Apartments (1F) 360 358 L (9.75), O (0.25)
55 Arbor Court Apartments (1F) 360 358 L (9.75), O (0.25)
56 U-Store of Brighton Self Storage Facility (1G) 300 299 L (9.75), O (0.25)
57 U-Store of South Lyon Self Storage Facility (1G) 300 299 L (9.75), O (0.25)
58 U-Store of Saline Self Storage Facility (1G) 300 299 L (9.75), O (0.25)
59 U-Store of Davison Self Storage Facility (1G) 300 299 L (9.75), O (0.25)
60 U-Store of Holly Self Storage Facility (1G) 300 299 L (9.75), O (0.25)
61 U-Store of Jackson Self Storage Facility (1G) 300 299 L (9.75), O (0.25)
62 Birches Apartments 360 358 L (9.75), O (0.25)
63 Hollywood Plaza 360 356 11/01/08 L (9.75), O (0.25)
64 50-60 Worcester Rd. 360 359 L (9.75), O (0.25)
66 Silvernail Shopping Center 360 359 L (9.67), O (0.33)
68 Centre North Shopping Center 360 356 L (9.75), O (0.25)
71 Lubbock Shopping Parkade 360 358 L (9.75), O (0.25)
72 Marin Club Apartments 360 358 L (9.75), O (0.25)
73 Prunedale Center 360 356 11/01/08 L (9.75), O (0.25)
74 Lamplighter Ontario MHP 360 358 L (4.75), O (0.25)
77 Century Plaza East 360 357 L (9.75), O (0.25)
78 Keller Springs Tech Center 360 358 L (9.75), O (0.25)
79 Mobile Gardens/Holly View Mobile Home Park (1I) 360 356 11/01/08 L (9.75), O (0.25)
80 Stony Chase/Rock Creek Mobile Home Park (1I) 360 356 11/01/08 L (9.75), O (0.25)
81 Briarwood Manor (1I) 360 356 11/01/08 L (9.75), O (0.25)
83 Aurora Square 360 357 L (9.75), O (0.25)
85 Northwood Hills Shopping Center 360 359 L (9.5), O (0.5)
86 36th Street Office Center 360 358 L (9.75), O (0.25)
87 Fifth Avenue Apartments 360 358 L (9.5), O (0.5)
91 Chasewood Apartments 360 358 L (9.75), O (0.25)
Mortgage Loan Schedule
<CAPTION>
Fee
Defeasance Simple/ Interest
# Property Name -11 Leasehold Accrual
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 Hampton Inn - Elmsford (1A) Yes Fee 30/360
2 Quality Suites - Charleston (1A) Yes Fee 30/360
3 Courtyard by Marriott - Ann Arbor (1A) Yes Fee 30/360
4 Residence Inn - Phoenix (1A) Yes Fee 30/360
5 Homewood Suites - Cary (1A) Yes Fee 30/360
6 Hampton Inn & Suites - Gwinnett (1A) Yes Fee 30/360
7 Hampton Inn - Raleigh (1A) Yes Fee 30/360
8 Comfort Suites - Orlando (1A) Yes Fee 30/360
9 Hampton Inn - Perimeter (1A) Yes Fee 30/360
10 Hampton Inn - Charlotte, NC (1A) Yes Fee 30/360
11 Courtyard by Marriott - Wilmington (1A) Yes Fee 30/360
12 Hampton Inn - West Springfield (1A) Yes Fee 30/360
13 Homewood Suites - Clear Lake (1A) Yes Fee 30/360
14 Comfort Inn - Charleston (1A) Yes Fee 30/360
15 Kendale Lakes Plaza (1B) Yes Fee Actual/360
16 Cypress Creek Station (1B) Yes Fee Actual/360
17 Oakwood Business Center (1B) Yes Fee Actual/360
23 Country Squire Apartments - South No Fee 30/360
28 Fair Lakes Promenade Yes Fee Actual/360
29 Keller Oaks Apartments (1E) Yes Fee Actual/360
30 Sycamore Hill Apartments (1E) Yes Fee Actual/360
31 Clarendon Apartments (1E) Yes Fee Actual/360
32 Woodchase Condominiums (1E) Yes Fee Actual/360
33 Dallas Design Center Portfolio Yes Fee/Leasehold Actual/360
34 Assembly Square Office Building Yes Fee Actual/360
35 Spicetree Apartments Yes Fee 30/360
36 Lamplighter Mobile Home Park Yes Fee Actual/360
39 The Links at Bixby No Fee Actual/360
40 Southwood Apartments Yes Fee Actual/360
42 Edentree Apartments Yes Fee Actual/360
43 Becker Village Mall Yes Fee Actual/360
46 River Park Shopping Center Yes Fee Actual/360
47 Rancho Destino Apartments Yes Fee Actual/360
48 Conestoga Mobile Home Park Yes Fee Actual/360
49 Huntington Chase Apartments Yes Fee Actual/360
51 Kenwood Pavilion Yes Fee Actual/360
52 Newsome Park Apartments Yes Fee Actual/360
53 Princeton Court Apartments (1F) Yes Fee Actual/360
54 Pinewood Estates Apartments (1F) Yes Fee Actual/360
55 Arbor Court Apartments (1F) Yes Fee Actual/360
56 U-Store of Brighton Self Storage Facility (1G) Yes Fee Actual/360
57 U-Store of South Lyon Self Storage Facility (1G) Yes Fee Actual/360
58 U-Store of Saline Self Storage Facility (1G) Yes Fee Actual/360
59 U-Store of Davison Self Storage Facility (1G) Yes Fee Actual/360
60 U-Store of Holly Self Storage Facility (1G) Yes Fee Actual/360
61 U-Store of Jackson Self Storage Facility (1G) Yes Fee Actual/360
62 Birches Apartments Yes Fee Actual/360
63 Hollywood Plaza Yes Fee Actual/360
64 50-60 Worcester Rd. Yes Fee Actual/360
66 Silvernail Shopping Center Yes Fee Actual/360
68 Centre North Shopping Center Yes Fee Actual/360
71 Lubbock Shopping Parkade Yes Fee Actual/360
72 Marin Club Apartments Yes Fee Actual/360
73 Prunedale Center Yes Fee Actual/360
74 Lamplighter Ontario MHP Yes Fee Actual/360
77 Century Plaza East Yes Fee Actual/360
78 Keller Springs Tech Center Yes Fee Actual/360
79 Mobile Gardens/Holly View Mobile Home Park (1I) Yes Fee Actual/360
80 Stony Chase/Rock Creek Mobile Home Park (1I) Yes Fee Actual/360
81 Briarwood Manor (1I) Yes Fee Actual/360
83 Aurora Square Yes Fee Actual/360
85 Northwood Hills Shopping Center Yes Fee Actual/360
86 36th Street Office Center Yes Fee Actual/360
87 Fifth Avenue Apartments Yes Fee Actual/360
91 Chasewood Apartments Yes Fee Actual/360
</TABLE>
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
92 Kingsgate North 4010-4230 82nd Street Lubbock
93 Fairfield Suites Pittsburgh/Airport 239 Summit Park Drive Pittsburgh
94 Seatree Apartments 2800 Nasa Rd 1 Seabrook
95 All Aboard Mini Storage - Alhambra 2000 West Mission Rd. Alhambra
96 West Century Center 5015-5063 West Main Street Oshtemo Township
97 Universal Plaza 2533-2793 NW 79th Avenue Miami
98 Crestview Market Place 1308-1334 North Ferndon Blvd. (Hwy 85) Crestview
103 Linens N Things U.S. Highway 441 at Glades Rd. Boca Raton
104 The Woods Apartments 2375 NE 173rd Street North Miami Beach
105 Moonlight Garden Apartments 12227 Osborne Place Pacoima
108 Dowling Office Building 6-22 Pleasant Street Malden
109 Main Street Plaza Shopping Center 701-725 East Main Street Alhambra
110 Friendship Crossing Apartments 17 - 127 Galveston St. Washington
114 One Bellemead Center 6425 Youree Drive Shreveport
115 Denver Tech Center #30 8301 East Prentice Ave Englewood (Denver)
116 Preston Racquet Club Condominiums and Apartments 5840 Spring Valley Rd. Dallas
117 Sand Lake Apartments 1302 Coopers Town Ct. Tampa
119 Colonia Shopping Center 1250 Lincoln Highway Colonia
120 Vista Ridge Center III 2417 South Stemmons Freeway Lewisville
121 Parkside East Apartments 710 Roeder Rd. Silver Spring
122 Northpark Village 401 Slide Rd. Lubbock
123 Breakers Apartments 1309 Lake Avenue Metairie
124 Picnic Lawn Apartments 24137 Stateline Rd. Bright
125 32nd Street and McDowell Road Shopping Center 3205-3297 E. McDowell Rd. Phoenix
126 Triangle Corporate Center 1400-1538 Elmhurst Rd. Elk Grove Village
127 One West Hills Office 3901 South Lamar Blvd. Austin
128 Harper Regency Apartments 1428 N. Harper Avenue West Hollywood
129 Heritage Green Shopping Center 8203 South Holly Street Littleton
130 Captain's Landing Apartments 3102 69th Street Galveston
131 All Aboard Mini Storage - Fremont 3560 Washington Blvd. Fremont
135 Cedar Garden Apartments 1030 Cedar Bridge Rd. Brick
136 All Aboard Mini Storage - Stanton 10741 Dale Ave. Stanton
137 Windtree Apartments - Phase I 409 Tradewinds Dr. Fayetteville
138 Lake City Mini-Storage 3116-3136 N.E. 130th Street Seattle
139 Huntington Mobile Estates 7652 Garfield Avenue Huntington Beach
140 Everhart Park Shopping Center 6601 Everhart Rd. Corpus Christi
141 Rafael North Executive Park 165,175, 185 North Redwood Drive San Rafael
142 Westwind Estates 1399 Sacramento Ave. West Sacramento
143 Hewlett Shopping Center 1296-1318 Broadway Hewlett
144 Forest Park Village 3423 Forest Lane Dallas
145 2700 Richards Building 2700 Richards Rd. Bellevue
146 Lincoln Park Center 6800 Stirling Rd. Davie
147 Cedar Heights Apartments 2600 N. Denton Rd. Dothan
148 The North Oak Apartments 225 Aldine Bender Houston
149 Arrowhead Court Apartments 700 Cherry Tree Rd. Upper Chichester Twp
150 The Citibank Building 225-255 East Dania Beach Blvd. Dania
151 Petco/Starbucks S/C 12800-12824 Ventura Boulevard Studio City
152 1870 Ogden Drive 1868-1870 Ogden Drive Burlingame
154 Tree Top Apartments 910-C Greenleaf Drive Fayetteville
157 Brookwood Village 1923 - 1943 Peachtree Rd. Atlanta
158 Rose Grove Mobile Home Park 3839 Pacific Ave. Forest Grove
159 Little River Shopping Center 1699 Highway 17 Little River
161 Best Western Worlds of Fun 7100 NE Parvin Rd. Kansas City
162 All Aboard Mini Storage - Anaheim 1705 S. State College Blvd. Anaheim
163 Waterway Crossing Apartments 685 Burcale Rd. Myrtle Beach
164 The Borders Building 9633 Westheimer Rd. Houston
165 Ken-Caryl Business Center 10499 & 10579 W. Bradford & 10394 W. Chatfield Ave. Littleton
166 Alta Vista Mobile Home Park 711 East Lake Mead Drive Henderson
167 Palm Springs Self Storage 4200 Forest Hill Blvd. Palm Springs
169 Caruth Haven Retail Center 6101 Greenville Avenue Dallas
170 3456 Ridge Property 3456 Ridge Avenue Arlington Heights
171 Campus Plaza Shopping Center 3601-3629 S. Vermont Ave. Los Angeles
172 All Aboard Mini Storage - San Gabriel 405 S. Del Mar Ave. San Gabriel
173 Point O' Woods Apartments 520 N. 38th Avenue Hattiesburg
174 Williamsburg on the Lake Apartments 302 Village Drive Mishawaka
176 Staples - Wilmington 1215 Rombach Avenue Wilmington
177 Felicita Junction 1611-1677 S. Centre City Parkway Escondido
178 The Bordeaux Apartments 523 Airline Rd. Corpus Christi
180 Assured Self Storage Facility 3003 Big Town Blvd. Mesquite
181 Staples - Valparaiso 2106 Morthland Blvd. (U.S. 30) Valparaiso
182 Fruitland Grove Family Park 19850 E. Arrow Highway Covina
183 Centennial Creek Office Park 2955 & 2975 Valmont Rd. Boulder
Mortgage Loan Schedule
<CAPTION>
Mortgage Original
Zip Loan Principal
# Property Name County State Code Seller Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
92 Kingsgate North Lubbock TX 79423 G.E. Capital Access 5,880,000
93 Fairfield Suites Pittsburgh/Airport Allegheny PA 15275 G.E. Capital Access 5,840,000
94 Seatree Apartments Harris TX 77586 G.E. Capital Access 5,840,000
95 All Aboard Mini Storage - Alhambra Los Angeles CA 91803 G.E. Capital Access 5,680,000
96 West Century Center Kalamazoo MI 49009 G.E. Capital Access 5,600,000
97 Universal Plaza Dade FL 33122 G.E. Capital Access 5,560,000
98 Crestview Market Place Okaloosa FL 32536 G.E. Capital Access 5,500,000
103 Linens N Things Palm Beach FL 33428 G.E. Capital Access 5,200,000
104 The Woods Apartments Dade FL 33160 G.E. Capital Access 5,048,000
105 Moonlight Garden Apartments Los Angeles CA 91331 G.E. Capital Access 4,987,000
108 Dowling Office Building Middlesex MA 2148 G.E. Capital Access 4,810,000
109 Main Street Plaza Shopping Center Los Angeles CA 91801 G.E. Capital Access 4,772,000
110 Friendship Crossing Apartments District of Columbia DC 20032 G.E. Capital Access 4,611,000
114 One Bellemead Center Caddo LA 71105 G.E. Capital Access 4,497,000
115 Denver Tech Center #30 Arapahoe CO 80111 G.E. Capital Access 4,475,000
116 Preston Racquet Club Condominiums and Apartments Dallas TX 75240 G.E. Capital Access 4,390,000
117 Sand Lake Apartments Hillsborough FL 33613 G.E. Capital Access 4,400,000
119 Colonia Shopping Center Middlesex NJ 7067 G.E. Capital Access 4,284,000
120 Vista Ridge Center III Denton TX 75067 G.E. Capital Access 4,275,000
121 Parkside East Apartments Montgomery MD 20910 G.E. Capital Access 4,200,000
122 Northpark Village Lubbock TX 79416 G.E. Capital Access 4,120,000
123 Breakers Apartments Jefferson LA 70005 G.E. Capital Access 4,096,000
124 Picnic Lawn Apartments Dearborn IN 47025 G.E. Capital Access 4,000,000
125 32nd Street and McDowell Road Shopping Center Maricopa AZ 85008 G.E. Capital Access 4,000,000
126 Triangle Corporate Center Cook IL 60007 G.E. Capital Access 4,000,000
127 One West Hills Office Travis TX 78704 G.E. Capital Access 3,950,000
128 Harper Regency Apartments Los Angeles CA 90046 G.E. Capital Access 3,975,000
129 Heritage Green Shopping Center Unincorporated Arapahoe CO 80122 G.E. Capital Access 3,850,000
130 Captain's Landing Apartments Galveston TX 77551 G.E. Capital Access 3,811,000
131 All Aboard Mini Storage - Fremont Alameda CA 94539 G.E. Capital Access 3,800,000
135 Cedar Garden Apartments Ocean NJ 8723 G.E. Capital Access 3,680,000
136 All Aboard Mini Storage - Stanton Orange CA 90680 G.E. Capital Access 3,680,000
137 Windtree Apartments - Phase I Cumberland NC 28314 G.E. Capital Access 3,600,000
138 Lake City Mini-Storage King WA 98125 G.E. Capital Access 3,600,000
139 Huntington Mobile Estates Orange CA 92648 G.E. Capital Access 3,500,000
140 Everhart Park Shopping Center Nueces TX 78413 G.E. Capital Access 3,500,000
141 Rafael North Executive Park Marin CA 94903 G.E. Capital Access 3,500,000
142 Westwind Estates Yolo CA 95605 G.E. Capital Access 3,448,000
143 Hewlett Shopping Center Nassau NY 11557 G.E. Capital Access 3,400,000
144 Forest Park Village Dallas TX 75234 G.E. Capital Access 3,280,000
145 2700 Richards Building King WA 98005 G.E. Capital Access 3,243,000
146 Lincoln Park Center Broward FL 33024 G.E. Capital Access 3,219,000
147 Cedar Heights Apartments Houston AL 36303 G.E. Capital Access 3,100,000
148 The North Oak Apartments Harris TX 77060 G.E. Capital Access 3,100,000
149 Arrowhead Court Apartments Delaware PA 19014 G.E. Capital Access 3,100,000
150 The Citibank Building Broward FL 33004 G.E. Capital Access 3,100,000
151 Petco/Starbucks S/C Los Angeles CA 91604 G.E. Capital Access 3,085,000
152 1870 Ogden Drive San Mateo CA 94010 G.E. Capital Access 3,080,000
154 Tree Top Apartments Cumberland NC 28304 G.E. Capital Access 3,000,000
157 Brookwood Village Fulton GA 30309 G.E. Capital Access 3,000,000
158 Rose Grove Mobile Home Park Washington OR 97116 G.E. Capital Access 3,000,000
159 Little River Shopping Center Horry SC 29566 G.E. Capital Access 2,960,000
161 Best Western Worlds of Fun Clay MO 64117 G.E. Capital Access 2,897,000
162 All Aboard Mini Storage - Anaheim Orange CA 92806 G.E. Capital Access 2,900,000
163 Waterway Crossing Apartments Horry SC 29579 G.E. Capital Access 2,850,000
164 The Borders Building Harris TX 77063 G.E. Capital Access 2,850,000
165 Ken-Caryl Business Center Jefferson CO 80127 G.E. Capital Access 2,830,000
166 Alta Vista Mobile Home Park Clark NV 89015 G.E. Capital Access 2,800,000
167 Palm Springs Self Storage Palm Beach FL 33406 G.E. Capital Access 2,800,000
169 Caruth Haven Retail Center Dallas TX 75206 G.E. Capital Access 2,800,000
170 3456 Ridge Property Cook IL 60004 G.E. Capital Access 2,800,000
171 Campus Plaza Shopping Center Los Angeles CA 90007 G.E. Capital Access 2,750,000
172 All Aboard Mini Storage - San Gabriel Los Angeles CA 91776 G.E. Capital Access 2,740,000
173 Point O' Woods Apartments Forrest and Lamar MS 39401 G.E. Capital Access 2,720,000
174 Williamsburg on the Lake Apartments St. Joseph IN 46545 G.E. Capital Access 2,743,468
176 Staples - Wilmington Clinton OH 45177 G.E. Capital Access 2,680,000
177 Felicita Junction San Diego CA 92025 G.E. Capital Access 2,675,000
178 The Bordeaux Apartments Nueces TX 78412 G.E. Capital Access 2,680,000
180 Assured Self Storage Facility Dallas TX 75150 G.E. Capital Access 2,650,000
181 Staples - Valparaiso Porter IN 46383 G.E. Capital Access 2,560,000
182 Fruitland Grove Family Park Los Angeles CA 91724 G.E. Capital Access 2,520,000
183 Centennial Creek Office Park Boulder CO 80301 G.E. Capital Access 2,500,000
Mortgage Loan Schedule
<CAPTION>
Original Remaining
Term to Term to
Cut-off Date Monthly Mortgage Maturity Maturity Maturity
# Property Name Balance(7) Payment Rate (months)(8) (months)(8) Date
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
92 Kingsgate North 5,860,574 39,119.79 7.0000% 120 116 11/01/08
93 Fairfield Suites Pittsburgh/Airport 5,831,027 43,766.70 7.6600% 120 119 02/01/09
94 Seatree Apartments 5,829,759 39,997.66 7.2900% 120 118 01/01/09
95 All Aboard Mini Storage - Alhambra 5,658,494 38,516.73 7.1900% 120 115 10/01/28
96 West Century Center 5,593,651 40,235.24 7.7800% 120 119 02/01/09
97 Universal Plaza 5,550,794 39,449.00 7.6500% 120 118 01/01/09
98 Crestview Market Place 5,481,829 36,591.64 7.0000% 120 116 11/01/08
103 Linens N Things 5,142,114 35,597.06 6.9500% 240 229 04/01/25
104 The Woods Apartments 5,039,048 34,333.60 7.2200% 120 118 01/01/09
105 Moonlight Garden Apartments 4,978,846 35,658.58 7.7300% 120 118 01/01/09
108 Dowling Office Building 4,801,712 33,303.47 7.4000% 120 118 01/01/09
109 Main Street Plaza Shopping Center 4,756,234 31,748.24 7.0000% 120 116 11/01/28
110 Friendship Crossing Apartments 4,603,093 32,020.05 7.4300% 120 118 01/01/09
114 One Bellemead Center 4,487,741 32,715.69 7.9100% 120 117 12/01/08
115 Denver Tech Center #30 4,463,948 29,772.29 7.0000% 120 117 12/01/08
116 Preston Racquet Club Condominiums and Apartments 4,385,027 31,571.93 7.7900% 120 119 02/01/09
117 Sand Lake Apartments 4,364,206 29,807.13 7.1800% 300 289 04/01/23
119 Colonia Shopping Center 4,279,036 29,954.35 7.5000% 120 119 02/01/09
120 Vista Ridge Center III 4,268,033 30,626.62 7.7500% 120 118 01/01/09
121 Parkside East Apartments 4,190,128 28,651.40 7.2500% 120 117 12/01/08
122 Northpark Village 4,106,388 27,410.46 7.0000% 120 116 11/01/08
123 Breakers Apartments 4,079,323 26,839.42 6.8500% 120 115 10/01/28
124 Picnic Lawn Apartments 3,993,174 27,859.10 7.4600% 120 118 01/01/09
125 32nd Street and McDowell Road Shopping Center 3,987,170 27,016.27 7.1500% 120 116 11/01/08
126 Triangle Corporate Center 3,985,516 25,361.69 6.5300% 120 116 11/01/28
127 One West Hills Office 3,943,084 27,080.05 7.3000% 120 118 01/01/09
128 Harper Regency Apartments 3,942,885 27,008.75 7.2100% 300 289 04/01/23
129 Heritage Green Shopping Center 3,843,471 26,919.76 7.5000% 120 118 01/01/09
130 Captain's Landing Apartments 3,802,289 26,360.60 7.3900% 89 86 05/01/06
131 All Aboard Mini Storage - Fremont 3,785,612 25,768.23 7.1900% 120 115 10/01/28
135 Cedar Garden Apartments 3,673,780 25,781.51 7.5200% 120 118 01/01/09
136 All Aboard Mini Storage - Stanton 3,666,066 24,954.50 7.1900% 120 115 10/01/28
137 Windtree Apartments - Phase I 3,593,944 25,295.09 7.5500% 120 118 01/01/09
138 Lake City Mini-Storage 3,582,501 25,789.57 7.1500% 120 116 11/01/08
139 Huntington Mobile Estates 3,488,993 23,876.17 7.2500% 120 116 11/01/28
140 Everhart Park Shopping Center 3,488,424 23,285.59 7.0000% 120 116 11/01/28
141 Rafael North Executive Park 3,484,424 23,348.17 6.6800% 120 116 11/01/08
142 Westwind Estates 3,440,039 23,732.29 7.3400% 120 117 12/01/28
143 Hewlett Shopping Center 3,392,008 23,193.99 7.2500% 120 117 12/01/08
144 Forest Park Village 3,273,025 23,498.32 7.7500% 120 117 12/01/08
145 2700 Richards Building 3,239,230 22,586.77 7.4600% 120 119 02/01/09
146 Lincoln Park Center 3,211,916 22,684.31 7.5800% 120 117 12/01/08
147 Cedar Heights Apartments 3,096,364 21,358.14 7.3500% 120 119 02/01/09
148 The North Oak Apartments 3,096,333 21,147.46 7.2500% 120 119 02/01/09
149 Arrowhead Court Apartments 3,089,758 20,624.38 7.0000% 120 116 11/01/08
150 The Citibank Building 3,089,758 20,624.38 7.0000% 120 116 11/01/28
151 Petco/Starbucks S/C 3,078,211 21,740.02 7.5800% 120 117 12/01/08
152 1870 Ogden Drive 3,076,465 21,789.45 7.6200% 120 119 02/01/09
154 Tree Top Apartments 2,996,535 21,058.67 7.5400% 120 119 02/01/09
157 Brookwood Village 2,989,241 19,120.15 6.5800% 120 116 11/01/08
158 Rose Grove Mobile Home Park 2,987,966 19,798.15 6.9200% 120 115 10/01/28
159 Little River Shopping Center 2,956,573 20,717.02 7.5100% 144 143 02/01/11
161 Best Western Worlds of Fun 2,890,249 22,359.52 8.0000% 120 118 01/01/09
162 All Aboard Mini Storage - Anaheim 2,889,020 19,665.23 7.1900% 120 115 10/01/28
163 Waterway Crossing Apartments 2,824,908 18,636.86 6.8300% 180 169 04/01/28
164 The Borders Building 2,823,462 26,016.59 7.2500% 120 117 12/01/08
165 Ken-Caryl Business Center 2,819,285 19,190.55 7.1900% 120 115 10/01/28
166 Alta Vista Mobile Home Park 2,795,415 20,001.53 7.7200% 84 82 01/01/06
167 Palm Springs Self Storage 2,790,696 21,075.73 7.7100% 120 117 12/01/08
169 Caruth Haven Retail Center 2,789,237 18,854.67 7.1200% 120 115 10/01/28
170 3456 Ridge Property 2,788,732 16,751.43 5.9800% 120 116 11/01/28
171 Campus Plaza Shopping Center 2,741,352 18,759.85 7.2500% 120 116 11/01/28
172 All Aboard Mini Storage - San Gabriel 2,729,626 18,580.25 7.1900% 120 115 10/01/28
173 Point O' Woods Apartments 2,716,809 18,740.04 7.3500% 120 119 02/01/09
174 Williamsburg on the Lake Apartments 2,694,425 20,275.53 7.5000% 120 105 12/01/07
176 Staples - Wilmington 2,676,919 18,922.80 7.6000% 120 119 02/01/09
177 Felicita Junction 2,671,870 18,484.68 7.3800% 120 119 02/01/09
178 The Bordeaux Apartments 2,666,424 15,999.10 5.9600% 120 115 10/01/28
180 Assured Self Storage Facility 2,643,825 20,453.13 8.0000% 120 118 01/01/09
181 Staples - Valparaiso 2,557,057 18,075.51 7.6000% 120 119 02/01/09
182 Fruitland Grove Family Park 2,505,622 17,242.15 7.2800% 120 112 07/01/28
183 Centennial Creek Office Park 2,493,826 16,632.56 7.0000% 120 117 12/01/08
Mortgage Loan Schedule
<CAPTION>
Original Remaining
Amortization Amortization Prepayment
Term Term Provision as of
# Property Name (months) (months) ARD (9) Origination (10)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
92 Kingsgate North 360 356 L (9.75), O (0.25)
93 Fairfield Suites Pittsburgh/Airport 300 299 L (9.75), O (0.25)
94 Seatree Apartments 360 358 L (9.75), O (0.25)
95 All Aboard Mini Storage - Alhambra 360 355 10/01/08 L (9.75), O (0.25)
96 West Century Center 360 359 L (9.75), O (0.25)
97 Universal Plaza 360 358 L (9.75), O (0.25)
98 Crestview Market Place 360 356 L (9.75), O (0.25)
103 Linens N Things 324 313 04/01/18 L (9.92), YM 1% (9.58), O (0.5)
104 The Woods Apartments 360 358 L (9.75), O (0.25)
105 Moonlight Garden Apartments 360 358 L (9.75), O (0.25)
108 Dowling Office Building 360 358 L (9.75), O (0.25)
109 Main Street Plaza Shopping Center 360 356 11/01/08 L (9.75), O (0.25)
110 Friendship Crossing Apartments 360 358 L (9.75), O (0.25)
114 One Bellemead Center 360 357 L (9.67), O (0.33)
115 Denver Tech Center #30 360 357 L (9.75), O (0.25)
116 Preston Racquet Club Condominiums and Apartments 360 359 L (9.75), O (0.25)
117 Sand Lake Apartments 360 349 L (9.92), YM 1% (14.83), O (0.25)
119 Colonia Shopping Center 360 359 L (9.67), O (0.33)
120 Vista Ridge Center III 360 358 L (9.75), O (0.25)
121 Parkside East Apartments 360 357 L (9.75), O (0.25)
122 Northpark Village 360 356 L (9.75), O (0.25)
123 Breakers Apartments 360 355 10/01/08 L (9.5), O (0.5)
124 Picnic Lawn Apartments 360 358 L (9.75), O (0.25)
125 32nd Street and McDowell Road Shopping Center 360 356 L (9.75), O (0.25)
126 Triangle Corporate Center 360 356 11/01/08 L (9.75), O (0.25)
127 One West Hills Office 360 358 L (9.75), O (0.25)
128 Harper Regency Apartments 360 349 L (7.92), YM 1% (16.83), O (0.25)
129 Heritage Green Shopping Center 360 358 L (9.75), O (0.25)
130 Captain's Landing Apartments 360 357 L (4), YM 1% (2.92), O (0.5)
131 All Aboard Mini Storage - Fremont 360 355 10/01/08 L (9.75), O (0.25)
135 Cedar Garden Apartments 360 358 L (9.75), O (0.25)
136 All Aboard Mini Storage - Stanton 360 355 10/01/08 L (9.75), O (0.25)
137 Windtree Apartments - Phase I 360 358 L (9.75), O (0.25)
138 Lake City Mini-Storage 300 296 L (9.75), O (0.25)
139 Huntington Mobile Estates 360 356 11/01/08 L (9.75), O (0.25)
140 Everhart Park Shopping Center 360 356 11/01/08 L (9.67), O (0.33)
141 Rafael North Executive Park 324 320 L (9.75), O (0.25)
142 Westwind Estates 360 357 12/01/08 L (9.75), O (0.25)
143 Hewlett Shopping Center 360 357 L (9.75), O (0.25)
144 Forest Park Village 360 357 L (9.75), O (0.25)
145 2700 Richards Building 360 359 L (9.75), O (0.25)
146 Lincoln Park Center 360 357 L (9.5), O (0.5)
147 Cedar Heights Apartments 360 359 L (9.75), O (0.25)
148 The North Oak Apartments 360 359 L (9.75), O (0.25)
149 Arrowhead Court Apartments 360 356 L (9.75), O (0.25)
150 The Citibank Building 360 356 11/01/08 L (9.75), O (0.25)
151 Petco/Starbucks S/C 360 357 L (9.75), O (0.25)
152 1870 Ogden Drive 360 359 L (9.75), O (0.25)
154 Tree Top Apartments 360 359 L (9.75), O (0.25)
157 Brookwood Village 360 356 L (9.75), O (0.25)
158 Rose Grove Mobile Home Park 360 355 10/01/08 L (9.5), O (0.5)
159 Little River Shopping Center 360 359 L (11.67), O (0.33)
161 Best Western Worlds of Fun 300 298 L (9.75), O (0.25)
162 All Aboard Mini Storage - Anaheim 360 355 10/01/08 L (9.75), O (0.25)
163 Waterway Crossing Apartments 360 349 04/01/13 L (4.92), YM 1% (9.83), O (0.25)
164 The Borders Building 180 177 L (9.75), O (0.25)
165 Ken-Caryl Business Center 360 355 10/01/08 L (9.75), O (0.25)
166 Alta Vista Mobile Home Park 360 358 L (6.75), O (0.25)
167 Palm Springs Self Storage 300 297 L (9.75), O (0.25)
169 Caruth Haven Retail Center 360 355 10/01/08 L (9.75), O (0.25)
170 3456 Ridge Property 360 356 11/01/08 L (9.75), O (0.25)
171 Campus Plaza Shopping Center 360 356 11/01/08 L (3), YM 1% (6.5), O (0.5)
172 All Aboard Mini Storage - San Gabriel 360 355 10/01/08 L (9.75), O (0.25)
173 Point O' Woods Apartments 360 359 L (9.75), O (0.25)
174 Williamsburg on the Lake Apartments 300 285 L (3), YM 1% (7)
176 Staples - Wilmington 360 359 L (9.75), O (0.25)
177 Felicita Junction 360 359 L (9.75), O (0.25)
178 The Bordeaux Apartments 360 355 10/01/08 L (9.67), O (0.33)
180 Assured Self Storage Facility 300 298 L (9.75), O (0.25)
181 Staples - Valparaiso 360 359 L (9.75), O (0.25)
182 Fruitland Grove Family Park 360 352 07/01/08 L (4), YM 1% (5.75), O (0.25)
183 Centennial Creek Office Park 360 357 L (9.75), O (0.25)
Mortgage Loan Schedule
<CAPTION>
Fee
Defeasance Simple/ Interest
# Property Name -11 Leasehold Accrual
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
92 Kingsgate North Yes Fee Actual/360
93 Fairfield Suites Pittsburgh/Airport Yes Fee Actual/360
94 Seatree Apartments Yes Fee Actual/360
95 All Aboard Mini Storage - Alhambra Yes Fee Actual/360
96 West Century Center Yes Fee Actual/360
97 Universal Plaza Yes Fee Actual/360
98 Crestview Market Place Yes Fee Actual/360
103 Linens N Things No Fee Actual/360
104 The Woods Apartments Yes Fee Actual/360
105 Moonlight Garden Apartments Yes Fee Actual/360
108 Dowling Office Building Yes Fee Actual/360
109 Main Street Plaza Shopping Center Yes Fee Actual/360
110 Friendship Crossing Apartments Yes Fee Actual/360
114 One Bellemead Center Yes Fee Actual/360
115 Denver Tech Center #30 Yes Fee Actual/360
116 Preston Racquet Club Condominiums and Apartments Yes Fee Actual/360
117 Sand Lake Apartments No Fee Actual/360
119 Colonia Shopping Center Yes Fee Actual/360
120 Vista Ridge Center III Yes Fee Actual/360
121 Parkside East Apartments Yes Fee Actual/360
122 Northpark Village Yes Fee Actual/360
123 Breakers Apartments Yes Fee Actual/360
124 Picnic Lawn Apartments Yes Fee Actual/360
125 32nd Street and McDowell Road Shopping Center Yes Fee Actual/360
126 Triangle Corporate Center Yes Fee Actual/360
127 One West Hills Office Yes Fee Actual/360
128 Harper Regency Apartments No Fee Actual/360
129 Heritage Green Shopping Center Yes Fee Actual/360
130 Captain's Landing Apartments No Fee Actual/360
131 All Aboard Mini Storage - Fremont Yes Fee Actual/360
135 Cedar Garden Apartments Yes Fee Actual/360
136 All Aboard Mini Storage - Stanton Yes Fee Actual/360
137 Windtree Apartments - Phase I Yes Fee Actual/360
138 Lake City Mini-Storage Yes Fee Actual/360
139 Huntington Mobile Estates Yes Fee Actual/360
140 Everhart Park Shopping Center Yes Fee 30/360
141 Rafael North Executive Park Yes Fee Actual/360
142 Westwind Estates Yes Leasehold Actual/360
143 Hewlett Shopping Center Yes Fee Actual/360
144 Forest Park Village Yes Fee Actual/360
145 2700 Richards Building Yes Fee Actual/360
146 Lincoln Park Center Yes Fee Actual/360
147 Cedar Heights Apartments Yes Fee Actual/360
148 The North Oak Apartments Yes Fee Actual/360
149 Arrowhead Court Apartments Yes Fee Actual/360
150 The Citibank Building Yes Fee Actual/360
151 Petco/Starbucks S/C Yes Fee Actual/360
152 1870 Ogden Drive Yes Fee Actual/360
154 Tree Top Apartments Yes Fee Actual/360
157 Brookwood Village Yes Fee Actual/360
158 Rose Grove Mobile Home Park Yes Fee Actual/360
159 Little River Shopping Center Yes Fee Actual/360
161 Best Western Worlds of Fun Yes Fee Actual/360
162 All Aboard Mini Storage - Anaheim Yes Fee Actual/360
163 Waterway Crossing Apartments No Fee Actual/360
164 The Borders Building Yes Fee Actual/360
165 Ken-Caryl Business Center Yes Fee Actual/360
166 Alta Vista Mobile Home Park Yes Fee Actual/360
167 Palm Springs Self Storage Yes Fee Actual/360
169 Caruth Haven Retail Center Yes Fee Actual/360
170 3456 Ridge Property Yes Fee Actual/360
171 Campus Plaza Shopping Center No Fee Actual/360
172 All Aboard Mini Storage - San Gabriel Yes Fee Actual/360
173 Point O' Woods Apartments Yes Fee Actual/360
174 Williamsburg on the Lake Apartments No Fee 30/360
176 Staples - Wilmington Yes Fee Actual/360
177 Felicita Junction Yes Leasehold Actual/360
178 The Bordeaux Apartments Yes Fee 30/360
180 Assured Self Storage Facility Yes Fee Actual/360
181 Staples - Valparaiso Yes Fee Actual/360
182 Fruitland Grove Family Park No Fee Actual/360
183 Centennial Creek Office Park Yes Fee Actual/360
</TABLE>
<PAGE>
Mortgage Loan Schedule
<TABLE>
<CAPTION>
# Property Name Address City
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
187 Ross Apartments 1118 Sir Francis Drake Boulevard Kentfield
188 339 S. Ardmore Apartments 339 South Ardmore Avenue Los Angeles
189 Edgewater Beach Resort 95 Chase Avenue Dennisport
190 Fondren Hill Apartments 770 Lakeland Jackson
191 Cottonwood Plaza 7250-7356 North Oracle Rd. Tucson
192 Southport Shops 7225 US 31 South Indianapolis
193 Hawthorne Hill Apartments 3200-3361 & 3419-3498 Valerie Arms Drive Dayton
194 Days Inn Waccamaw 3650 Highway 501 Myrtle Beach
195 Turtle Oaks Apartments 4111-21, 4140 & 4141 Newton Ave Dallas
198 Imperial Manor West Apartments 19200 Appleton Detroit
199 Brown School Station Apts. 402-A Brown School Rd. Vandalia
202 Corinthian Apartments 9063 Florence Ave. Downey
203 Walgreen's Drug Store - Swansea 2532 North Illinois Street Swansea
204 Catalina Apartments 815 W. Abram Street Arlington
206 1440 N. Vine Street 1400-1440 Vine Street Los Angeles
207 College Park Apartments 401 College Drive Hanceville
208 Country Brooke Apartments 2980 Stop Eight Rd. Dayton
212 Imperial Plaza Retail Center 8847 Imperial Highway Downey
215 Gateway Shoppes 1001-27 North Federal Highway Fort Lauderdale
216 Red Onion Building 420 and 422 East Cooper Avenue Aspen
217 526 South Ardmore Avenue 526 South Ardmore Avenue Los Angeles
218 All Aboard Mini Storage - Santa Ana 1030 E. Fourth Street Santa Ana
219 Villa East I & II 363 and 393 South Harlan St. Lakewood
220 Courtyard Apartments 1620 Carol Sue Ave. Gretna
221 Sunset View Village Apartments 7510 SW 152nd Avenue Miami
222 Wilmington Plaza 311 Pacific Coast Highway Wilmington
225 Best Western KCI Airport 11900 NW Plaza Circle Kansas City
226 Laurel Heights Apartments 483 Laurel Lane New Braunfels
227 El Monte Mobile Air Mobile Home Park 1517-1601 Merced Avenue South El Monte
236 Ravenna Plaza 1139-49 East Main Street Ravenna
238 Central/Magnolia Retail Center 4100 Central Avenue Riverside
239 Rolling Hills Estates 4457 Popps Ferry Rd. D'Iberville
245 383 St. Johns Place 383 St. Johns Place Brooklyn
246 Days Inn 2117 Aerotech Drive Colorado Springs
252 Executive Park Offices 921-925 East Executive Park Drive Murray
256 Best Western Country Inn North 2633 N.E. 43rd Street Kansas City
259 Pacific Mini Storage 5120 Pacific Highway Ferndale
264 Isaqueena Village Apartments 843 Isaqueena Trail Central
266 Carson Gardens Mobile Home Park 437 West Carson St. Carson
Mortgage Loan Schedule
<CAPTION>
Mortgage Original
Zip Loan Principal
# Property Name County State Code Seller Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
187 Ross Apartments Marin CA 94904 G.E. Capital Access 2,500,000
188 339 S. Ardmore Apartments Los Angeles CA 90020 G.E. Capital Access 2,500,000
189 Edgewater Beach Resort Barnstable MA 2639 G.E. Capital Access 2,493,000
190 Fondren Hill Apartments Hinds MS 39216 G.E. Capital Access 2,450,000
191 Cottonwood Plaza Pima AZ 85704 G.E. Capital Access 2,400,000
192 Southport Shops Marion IN 46227 G.E. Capital Access 2,400,000
193 Hawthorne Hill Apartments Montgomery OH 45405 G.E. Capital Access 2,400,000
194 Days Inn Waccamaw Horry SC 29577 G.E. Capital Access 2,400,000
195 Turtle Oaks Apartments Dallas TX 75219 G.E. Capital Access 2,344,000
198 Imperial Manor West Apartments Wayne MI 48219 G.E. Capital Access 2,300,000
199 Brown School Station Apts. Montgomery OH 45377 G.E. Capital Access 2,260,000
202 Corinthian Apartments Los Angeles CA 90240 G.E. Capital Access 2,200,000
203 Walgreen's Drug Store - Swansea St. Clair IL 62226 G.E. Capital Access 2,190,000
204 Catalina Apartments Tarrant TX 76013 G.E. Capital Access 2,176,000
206 1440 N. Vine Street Los Angeles CA 90028 G.E. Capital Access 2,100,000
207 College Park Apartments Cullman AL 35055 G.E. Capital Access 2,100,000
208 Country Brooke Apartments Montgomery OH 45414 G.E. Capital Access 2,067,000
212 Imperial Plaza Retail Center Los Angeles CA 90242 G.E. Capital Access 2,000,000
215 Gateway Shoppes Broward FL 33304 G.E. Capital Access 2,000,000
216 Red Onion Building Pitkin CO 81611 G.E. Capital Access 2,000,000
217 526 South Ardmore Avenue Los Angeles CA 90020 G.E. Capital Access 2,000,000
218 All Aboard Mini Storage - Santa Ana Orange CA 92701 G.E. Capital Access 1,894,000
219 Villa East I & II Jefferson CO 80226 G.E. Capital Access 1,870,000
220 Courtyard Apartments Jefferson LA 70056 G.E. Capital Access 1,850,000
221 Sunset View Village Apartments Dade FL 33193 G.E. Capital Access 1,852,000
222 Wilmington Plaza Los Angeles CA 90744 G.E. Capital Access 1,845,000
225 Best Western KCI Airport Platte MO 64153 G.E. Capital Access 1,826,000
226 Laurel Heights Apartments Comal TX 78130 G.E. Capital Access 1,800,000
227 El Monte Mobile Air Mobile Home Park Los Angeles CA 91733 G.E. Capital Access 1,800,000
236 Ravenna Plaza Portage OH 44266 G.E. Capital Access 1,701,000
238 Central/Magnolia Retail Center Riverside CA 92506 G.E. Capital Access 1,695,000
239 Rolling Hills Estates Harrison MS 39532 G.E. Capital Access 1,700,000
245 383 St. Johns Place Kings NY 11238 G.E. Capital Access 1,600,000
246 Days Inn El Paso CO 80916 G.E. Capital Access 1,600,000
252 Executive Park Offices Salt Lake UT 84117 G.E. Capital Access 1,501,000
256 Best Western Country Inn North Clay MO 64117 G.E. Capital Access 1,448,000
259 Pacific Mini Storage Whatcom WA 98248 G.E. Capital Access 1,350,000
264 Isaqueena Village Apartments Pickens SC 29630 G.E. Capital Access 1,250,000
266 Carson Gardens Mobile Home Park Los Angeles CA 90745 G.E. Capital Access 1,200,000
Mortgage Loan Schedule
<CAPTION>
Original Remaining
Term to Term to
Cut-off Date Monthly Mortgage Maturity Maturity Maturity
# Property Name Balance(7) Payment Rate (months)(8) (months)(8) Date
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
187 Ross Apartments 2,488,010 15,085.34 6.0600% 120 115 10/01/28
188 339 S. Ardmore Apartments 2,487,451 16,582.22 6.9700% 120 114 09/01/28
189 Edgewater Beach Resort 2,487,007 18,863.09 7.7700% 120 118 01/01/09
190 Fondren Hill Apartments 2,438,627 15,037.30 6.2200% 120 115 10/01/28
191 Cottonwood Plaza 2,394,370 16,388.51 7.2600% 120 117 12/01/08
192 Southport Shops 2,392,453 16,372.23 7.2500% 120 116 11/01/08
193 Hawthorne Hill Apartments 2,389,375 15,090.80 6.4500% 120 115 10/01/28
194 Days Inn Waccamaw 2,387,655 16,642.55 6.7900% 120 116 11/01/08
195 Turtle Oaks Apartments 2,341,262 16,229.38 7.4000% 120 119 02/01/09
198 Imperial Manor West Apartments 2,281,127 16,447.16 7.1300% 120 113 08/01/23
199 Brown School Station Apts. 2,249,293 15,111.80 7.0500% 120 114 09/01/28
202 Corinthian Apartments 2,187,615 14,401.02 6.8400% 120 113 08/01/28
203 Walgreen's Drug Store - Swansea 2,184,954 15,088.49 7.3500% 120 117 12/01/08
204 Catalina Apartments 2,172,345 15,304.41 7.5600% 120 118 01/01/09
206 1440 N. Vine Street 2,093,062 13,971.35 7.0000% 120 116 11/01/08
207 College Park Apartments 2,088,510 13,929.07 6.9700% 120 113 08/01/28
208 Country Brooke Apartments 2,055,765 13,751.80 7.0000% 120 113 08/01/28
212 Imperial Plaza Retail Center 1,995,314 15,383.37 7.9600% 120 118 01/01/09
215 Gateway Shoppes 1,989,534 13,729.95 6.6800% 120 116 11/01/23
216 Red Onion Building 1,989,353 13,591.75 6.5700% 120 116 11/01/23
217 526 South Ardmore Avenue 1,985,158 13,427.16 7.0900% 120 111 06/01/08
218 All Aboard Mini Storage - Santa Ana 1,886,829 12,843.43 7.1900% 120 115 10/01/28
219 Villa East I & II 1,867,888 13,500.44 7.8300% 120 119 02/01/09
220 Courtyard Apartments 1,846,761 12,683.06 7.3000% 120 118 01/01/09
221 Sunset View Village Apartments 1,845,711 12,147.77 6.8600% 120 116 11/01/08
222 Wilmington Plaza 1,841,901 12,976.39 7.5600% 120 118 01/01/09
225 Best Western KCI Airport 1,821,745 14,093.36 8.0000% 120 118 01/01/09
226 Laurel Heights Apartments 1,790,996 11,722.67 6.7900% 120 114 09/01/28
227 El Monte Mobile Air Mobile Home Park 1,789,682 12,291.38 7.2600% 120 112 07/01/28
236 Ravenna Plaza 1,695,492 12,982.44 7.8700% 120 117 12/01/08
238 Central/Magnolia Retail Center 1,688,244 11,220.02 6.9500% 120 115 10/01/28
239 Rolling Hills Estates 1,686,359 12,298.67 7.2600% 120 113 08/01/08
245 383 St. Johns Place 1,594,755 10,687.86 7.0400% 120 116 11/01/08
246 Days Inn 1,592,690 11,865.52 7.5400% 120 116 11/01/08
252 Executive Park Offices 1,499,290 10,722.25 7.7200% 120 119 02/01/09
256 Best Western Country Inn North 1,444,626 11,175.90 8.0000% 120 118 01/01/09
259 Pacific Mini Storage 1,345,706 10,401.64 7.9800% 120 117 12/01/08
264 Isaqueena Village Apartments 1,243,760 8,149.06 6.8000% 120 114 09/01/28
266 Carson Gardens Mobile Home Park 1,192,300 8,267.67 7.3500% 120 111 06/01/28
Mortgage Loan Schedule
<CAPTION>
Original Remaining
Amortization Amortization Prepayment
Term Term Provision as of
# Property Name (months) (months) ARD (9) Origination (10)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
187 Ross Apartments 360 355 10/01/08 L (9.75), O (0.25)
188 339 S. Ardmore Apartments 360 354 09/01/08 L (9.75), O (0.25)
189 Edgewater Beach Resort 300 298 L (9.75), O (0.25)
190 Fondren Hill Apartments 360 355 10/01/08 L (9.75), O (0.25)
191 Cottonwood Plaza 360 357 L (9.75), O (0.25)
192 Southport Shops 360 356 L (9.75), O (0.25)
193 Hawthorne Hill Apartments 360 355 10/01/08 L (9.75), O (0.25)
194 Days Inn Waccamaw 300 296 L (9.75), O (0.25)
195 Turtle Oaks Apartments 360 359 L (9.75), O (0.25)
198 Imperial Manor West Apartments 300 293 08/01/08 L (9.75), O (0.25)
199 Brown School Station Apts. 360 354 09/01/08 L (9.75), O (0.25)
202 Corinthian Apartments 360 353 08/01/08 L (9.75), O (0.25)
203 Walgreen's Drug Store - Swansea 360 357 L (9.75), O (0.25)
204 Catalina Apartments 360 358 L (9.75), O (0.25)
206 1440 N. Vine Street 360 356 L (9.75), O (0.25)
207 College Park Apartments 360 353 08/01/08 L (9.75), O (0.25)
208 Country Brooke Apartments 360 353 08/01/08 L (9.75), O (0.25)
212 Imperial Plaza Retail Center 300 298 L (4), YM 1% (5.75), O (0.25)
215 Gateway Shoppes 300 296 11/01/08 L (9.75), O (0.25)
216 Red Onion Building 300 296 11/01/08 L (9.75), O (0.25)
217 526 South Ardmore Avenue 360 351 L (9.75), O (0.25)
218 All Aboard Mini Storage - Santa Ana 360 355 10/01/08 L (9.75), O (0.25)
219 Villa East I & II 360 359 L (9.75), O (0.25)
220 Courtyard Apartments 360 358 L (9.75), O (0.25)
221 Sunset View Village Apartments 360 356 L (9.75), O (0.25)
222 Wilmington Plaza 360 358 L (9.75), O (0.25)
225 Best Western KCI Airport 300 298 L (9.75), O (0.25)
226 Laurel Heights Apartments 360 354 09/01/08 L (9.75), O (0.25)
227 El Monte Mobile Air Mobile Home Park 360 352 07/01/08 L (3.92), YM 1% (5.83), O (0.25)
236 Ravenna Plaza 300 297 L (9.75), O (0.25)
238 Central/Magnolia Retail Center 360 355 10/01/08 L (9.75), O (0.25)
239 Rolling Hills Estates 300 293 L (3), YM 1% (6.75), O (0.25)
245 383 St. Johns Place 360 356 L (9.75), O (0.25)
246 Days Inn 300 296 L (9.75), O (0.25)
252 Executive Park Offices 360 359 L (9.75), O (0.25)
256 Best Western Country Inn North 300 298 L (9.75), O (0.25)
259 Pacific Mini Storage 300 297 L (9.75), O (0.25)
264 Isaqueena Village Apartments 360 354 09/01/08 L (9.75), O (0.25)
266 Carson Gardens Mobile Home Park 360 351 06/01/08 L (3.92), YM 1% (5.83), O (0.25)
Mortgage Loan Schedule
<CAPTION>
Fee
Defeasance Simple/ Interest
# Property Name -11 Leasehold Accrual
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
187 Ross Apartments Yes Fee Actual/360
188 339 S. Ardmore Apartments Yes Fee 30/360
189 Edgewater Beach Resort Yes Fee Actual/360
190 Fondren Hill Apartments Yes Fee Actual/360
191 Cottonwood Plaza Yes Fee Actual/360
192 Southport Shops Yes Fee Actual/360
193 Hawthorne Hill Apartments Yes Fee Actual/360
194 Days Inn Waccamaw Yes Leasehold Actual/360
195 Turtle Oaks Apartments Yes Fee Actual/360
198 Imperial Manor West Apartments Yes Fee Actual/360
199 Brown School Station Apts. Yes Fee Actual/360
202 Corinthian Apartments Yes Fee Actual/360
203 Walgreen's Drug Store - Swansea Yes Fee Actual/360
204 Catalina Apartments Yes Fee Actual/360
206 1440 N. Vine Street Yes Fee Actual/360
207 College Park Apartments Yes Fee Actual/360
208 Country Brooke Apartments Yes Fee Actual/360
212 Imperial Plaza Retail Center No Fee Actual/360
215 Gateway Shoppes Yes Fee Actual/360
216 Red Onion Building Yes Fee Actual/360
217 526 South Ardmore Avenue Yes Fee 30/360
218 All Aboard Mini Storage - Santa Ana Yes Fee Actual/360
219 Villa East I & II Yes Fee Actual/360
220 Courtyard Apartments Yes Fee Actual/360
221 Sunset View Village Apartments Yes Fee Actual/360
222 Wilmington Plaza Yes Leasehold Actual/360
225 Best Western KCI Airport Yes Fee Actual/360
226 Laurel Heights Apartments Yes Fee Actual/360
227 El Monte Mobile Air Mobile Home Park No Fee Actual/360
236 Ravenna Plaza Yes Fee Actual/360
238 Central/Magnolia Retail Center Yes Fee Actual/360
239 Rolling Hills Estates No Fee Actual/360
245 383 St. Johns Place Yes Fee Actual/360
246 Days Inn Yes Fee Actual/360
252 Executive Park Offices Yes Fee Actual/360
256 Best Western Country Inn North Yes Fee Actual/360
259 Pacific Mini Storage Yes Fee Actual/360
264 Isaqueena Village Apartments Yes Fee Actual/360
266 Carson Gardens Mobile Home Park No Fee Actual/360
</TABLE>
(1A) The Winston Loan is secured by Hampton Inn - Elmsford, Quality Suites -
Charleston, Courtyard by Marriott - Ann Arbor, Residence Inn - Phoenix,
Homewood Suites - Cary, Hampton Inn & Suites - Gwinnett, Hampton Inn -
Raleigh, Comfort Suites - Orlando, Hampton Inn - Perimeter, Hampton Inn -
Charlotte, NC, Courtyard by Marriott - Wilmington, Hampton Inn - West
Springfield, Homewood Suites - Clear Lake and Comfort Inn - Charleston,
respectively.
(1B) The Mortgage Loans secured by Kendale Lakes Plaza, Cypress Creek Station
and Oakwood Business Center, respectively, are cross-collateralized and
cross-defaulted.
(1E) A Single Mortgage Note is secured by Keller Oaks Apartments, Sycamore Hill
Apartments, Clarendon Apartments and Woodchase Condominiums, respectively.
(1F) A Single Mortgage Note is secured by Princeton Court Apartments, Pinewood
Estates Apartments and Arbor Court Apartments, respectively.
(1G) A Single Mortgage Note is secured by U-Store of Brighton Self Storage
Facility, U-Store of South Lyon Self Storage Facility, U-Store of Saline
Self Storage Facility, U-Store of Davison Self Storage Facility, U-Store of
Holly Self Storage Facility and U-Store of Jackson Self Storage Facility,
respectively.
(1I) A Single Mortgage Note is secured by Mobile Gardens/Holly View Mobile Home
Park, Stony Chase/Rock Creek Mobile Home Park and Briarwood Manor,
respectively.
(7) Assumes a Cut-off Date of March 1, 1999.
(8) In the case of the Anticipated Repayment Date loans, the Anticipated
Repayment Date is assumed to be the maturity date for the purposes of the
indicated column.
(9) Anticipated Repayment Date.
(10) Prepayment Provision as of Origination:
L (x) = Lockout or Defeasance for x years
YM A% (x) = Greater of Yield Maintenance Premium and A% Prepayment for x
years
O (x) = Prepayable at par for x years
(11) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
<PAGE>
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS
TO MORTGAGE FILE DELIVERY
B-2-1
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass Through Certificates
Series 1999-CG1
<TABLE>
<CAPTION>
Prospectus
Number Property Name Doc Type Code Exception
<S> <C> <C> <C> <C>
1 HAMPTON INN - E NOTE 22 Endorsement(s) Is Missing/incorrect
15 KENDALE LAKES P NOTE 22 Endorsement(s) Is Missing/incorrect
16 CYPRESS CREEK S NOTE 22 Endorsement(s) Is Missing/incorrect
17 OAKWOOD BUSINES NOTE 22 Endorsement(s) Is Missing/incorrect
23 COUNTRY SQUIRE ALNG 24 Name Is Missing/incorrect
24 2294 MOLLY PITC NOTE 22 Endorsement(s) Is Missing/incorrect
35 SPICETREE APART NOTE 21 White-Out / Corrections Not Initialed
67 SILVERNAIL SHOP NOTE 22 Endorsement(s) Is Missing/incorrect
76 MARYCREST SHOPP NOTE 14 Loan Amount Does Not Agree With Schedule
86 NORTHWOOD HILLS NOTE 22 Endorsement(s) Is Missing/incorrect
93 KINGSGATE NORTH NOTE 21 White-Out / Corrections Not Initialed
95 SEATREE APARTME NOTE 21 White-Out / Corrections Not Initialed
103 COMFORT INN - H NOTE 22 Endorsement(s) Is Missing/incorrect
107 SAGAMORE COURT NOTE 14 Loan Amount Does Not Agree With Schedule
123 NORTHPARK VILLA NOTE 21 White-Out / Corrections Not Initialed
138 WINDTREE APARTM NOTE 22 Endorsement(s) Is Missing/incorrect
143 WESTWIND ESTATE NOTE 21 White-Out / Corrections Not Initialed
146 2700 RICHARDS B NOTE 22 Endorsement(s) Is Missing/incorrect
175 WILLIAMSBURG ON NOTE 22 Endorsement(s) Is Missing/incorrect
183 FRUITLAND GROVE NOTE 21 White-Out / Corrections Not Initialed
190 EDGEWATER BEACH NOTE 22 Endorsement(s) Is Missing/incorrect
219 ALL ABOARD MINI NOTE 22 Endorsement(s) Is Missing/incorrect
228 EL MONTE MOBILE NOTE 22 Endorsement(s) Is Missing/incorrect
249 MICHIGAN PLAZA NOTE 21 White-Out / Corrections Not Initialed
257 BEST WESTERN CO NOTE 22 Endorsement(s) Is Missing/incorrect
265 ISAQUEENA VILLA NOTE 22 Endorsement(s) Is Missing/incorrect
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass Through Certificates
Series 1999-CG1 (continued)
<CAPTION>
Prospectus
Number Property Name Comment
<S> <C> <C>
1 HAMPTON INN - E MISSING CMF CAP CORP TO NORWEST
15 KENDALE LAKES P MISSING GE CAP CORP TO NORWEST
16 CYPRESS CREEK S MISSING GE CAP CORP TO NORWEST
17 OAKWOOD BUSINES MISSING GE CAP CORP TO NORWEST
23 COUNTRY SQUIRE MISSING GE CAP CORP NAME AS ASSIGNEE
24 2294 MOLLY PITC END; COLUMN TO NORWEST MISSING
35 SPICETREE APART DONALD L BRAUN CROSSED (SIGNING BORROWER) CROSSED OUT NOT I
67 SILVERNAIL SHOP LOAN $ ON ALLONG INCORRECT ALNG:7,700,000 NOTE:7,808,000
76 MARYCREST SHOPP NOTE= 6,900,000 SCHEDULE= 7,000,000
86 NORTHWOOD HILLS ALNGE:NW HLS SHP CNTR,JV NOTE:NW HILLS VLLG SHP CNTR JV, LT
93 KINGSGATE NORTH WHITE OUT USED ON EFFECTIVE DATE NOT INITIALED
95 SEATREE APARTME EFFECTIVE DATED CROSSED OUT NOT INITIALED
103 COMFORT INN - H MISSING COLUMN TO NORWEST
107 SAGAMORE COURT NOTE= $5,000,000 SCHEDULE= $4,970,000
123 NORTHPARK VILLA WHITE OUT USED ON EFFECTIVE DATE NOT INITIALED
138 WINDTREE APARTM DATE, AMOUNT, AND BORROWER INCORRECT ON ALLONGE
143 WESTWIND ESTATE EFFECTIVE DATE CROSSED OUT NOT INITIALED
146 2700 RICHARDS B LOAN $ DOES NOT AGREE ALNG:3,300,000 NOTE:3,243,000
175 WILLIAMSBURG ON NOTE DATED 12/1/97 NOTE DATE ON ALNGE 6/23/98
183 FRUITLAND GROVE EFFECTIVE DATE CROSSED OUT NOT INITIALED
190 EDGEWATER BEACH ALLONGE REFERENCE LOAN AMOUNT $2,500,OOO S/B $2,493,000
219 ALL ABOARD MINI NOTE $:1,894,000 ALNG: 3,680,000
228 EL MONTE MOBILE NOTE DATED 6/30/98 ALNG STATES NOTE DATED 6/29/98
249 MICHIGAN PLAZA SECTION 1.05; CORRECTION NOT INITIALED
257 BEST WESTERN CO NOTE $:1,448,000 $ ON ALNG 2,897,000.00
265 ISAQUEENA VILLA NOTE DATED 8/12/98 NOTE ON ALNG: 8/16/98
</TABLE>
<PAGE>
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Column Financial Inc. DLJ Commercial Mortgage Corp.
3414 Peachtree Road, N.E. 277 Park Avenue
Suite 1140 New York, New York 10172
Atlanta, Georgia 30326-1113
GE Capital Loan Services, Inc.
Donaldson, Lufkin & Jenrette 363 North Sam Houston Parkway East,
Securities Corporation Suite 1200
277 Park Avenue Houston, Texas 77060
New York, New York 10172
Banc One Mortgage Capital Markets, LLC
GE Capital Access, Inc. 1717 Main Street, 14th Floor
125 Park Avenue, 10th Floor Dallas, Texas 75201
New York, New York 10017
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
250 Vesey Street
New York, New York 10281
Re: DLJ Commercial Mortgage Corp, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated as
of March 1, 1999 related to the above-referenced Certificates (the "Agreement"),
Norwest Bank Minnesota, National Association, in its capacity as trustee (the
"Trustee"), hereby certifies as to each Original Mortgage Loan subject to the
Agreement (except as identified in the exception report attached hereto) that:
(i) the original Mortgage Note specified in clause (i) of the definition of
"Mortgage File", the original or certified copy of each recorded document
specified in clauses (ii) through (v) of the definition of "Mortgage File", the
original or copy of the policy of title insurance specified in clause (vii) of
the definition of "Mortgage File" and each document specified in clause
B-3-1
<PAGE>
(viii) of the definition of "Mortgage File" (without regard to the
parenthetical), is in its possession or the possession of a Custodian on its
behalf; (ii) if such report is due after September 1, 1999, the
recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
(iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Borrower), (B) appear to
have been executed and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) and Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii) (other than
the zip code) and (vi)(B) of the definition of "Mortgage Loan Schedule"
accurately reflects the information set forth in the Mortgage File.
Pursuant to Section 2.02(c) of the Agreement, neither the Trustee nor the
Custodian is under any 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, binding, enforceable, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face,
Furthermore, neither the Trustee nor the Custodian shall have any responsibility
for determining whether the text of any assignment or endorsement is in proper
or recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:_______________________________
Name:
Title:
cc: Paul G. Smyth, Banc One Capital Markets, LLC
William Hirsch, Morrison & Hecker L.L.P.
B-3-2
<PAGE>
EXHIBIT C
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITORY
C-1
<PAGE>
[LOGO]
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
Letter of Representations
[To be Completed by Issuer and Agent]
DLJ Commercial Mortgage Corp
[Name of Issuer]
Norwest Bank Minnesota, National Association
[Name of Agent]
March 18, 1999
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, Class S, Class A-lA, Class A-1B,
Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Agent will act as
trustee, paying agent, fiscal agent, or other such agent of Issuer with respect
to the Securities pursuant to the Pooling and servicing Agreement or other such
document dated as of March 1, 1999 (the "Document"). DLJSC and Merrill Lynch (1)
are distributing the securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on March 19, 1999, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co for each
- ----------
(1) Donaldson, Lufkin & Jenrette Securities Corporation and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
<PAGE>
stated maturity of the Securities in the face amounts set forth on Schedule A
hereto, the total of which represents 100% of the principal amount of such
Securities. If, however, the aggregate principal amount of any maturity exceeds
$200 million, one certificate will be issued with respect to each $200 million
of principal amount and an additional certificate will be issued with respect to
any remaining principal amount. Each Security certificate shall bear the
following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall, to the extent possible, send notice of such record date to
DTC not less than 15 calendar days in advance of such record date. Notices to
DTC pursuant to this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-6896 or (212) 709-6897, and receipt of such notices
shall be confirmed by telephoning (212) 709-6870. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 5.
4. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a refunding. the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication Date"). Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (516) 227-4039 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516)227-4070. Notices
to DTC pursuant to this Paragraph by mail or by any other means shall be sent
to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
<PAGE>
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifing the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
preceding paragraph. Notices to DTC pursuat to this and notices of other
corporate actions by telecopy shall be sent to DTC's Reorganization Department
at (212) 709-1093 or (212) 709-1094, and receipt of such notices shall be
confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to the above by
mail or by mail or by other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York NY 10004-2695
6. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
7. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably 5, but not less than 2,
business days prior to such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), and Agent contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 709-1723, or if by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
8. [Note: Issuer must represent one of the following, and cross out the
other:] [The interest accrual period is record date to record date.] [The
interest accrual period is payment date to payment date.]
9. Issuer or Agent shall provide a written notice of interest payment
information to a standard interest announcement service subscribed to by DTC as
soon as the information is available. In the unlikely event that no such service
exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC, as soon as
the information is available. If electronic transmission is not available,
absent any other arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212) 709-1723 or
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
<PAGE>
10. Issuer or Agent shall provide CUSIP numbers for each issue for which
payment is being sent, as well as the dollar and cent amount of the payment for
each issue to DTC, no later than noon (Eastern Time) on the payment date.
11. lnterest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., nominee of DTC,
or its registered assigns in same-day funds no later than 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements between Issuer or
Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066~026776
12. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between issuer or Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066~027306
13. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern rime) on the first
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
14. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
15. In the event of a redemption acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuers or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
16. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In
-4-
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others.
17. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
-------------------------------------------------------
-------------------------------------------------------
Notes: Very truly yours,
A. If there is an Agent (as defined in
this Letter of Representations), Agent DLJ Commercial Mortgage Corp.
as well as issuer must sign this --------------------------------
letter. If there is no Agent, in (Issuer)
signing this Letter Issuer itself
undertakes to perform all of the By: /s/ N. Dante LaRocca
obligations set forth herein. --------------------------------
(Authorized Officer's Signature)
B. Schedule B contains statements that
DTC believes accurately describe DTC, Norwest Bank Minnesota,
the method of effecting book entry National Association
transfers of securities distributed --------------------------------
through DTC, and certain (Agent)
related matters.
By: /s/ Leslie Gaskill
--------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ Richard B. Jesson
-----------------------------
cc: Underwriter
Underwritter's Counsel
-5-
<PAGE>
[LOGO]
Rider Amending DTC Letter of Representations -- BEO Collateralized Mortgage
Obligations (CMO) Without Owner Option to Redeem/Other Asset-Backed Securities
/and Pass-Through Certificates
As of March 9, 3998, DTC's Reorganization Department relocated and prior to
that, DTC's Dividend Department relocated to the 55 Water Street location.
Following are the new addresses and related telephone and facsimile numbers
referenced in the Letter of Representations.
The following changes relate to Paragraph 3 of the Letter of Representations:
Old Telecopier Numbers Current Telecopier Numbers
(212) 709-6896 and (212) 709-6897 (212) 855-5181 and (212) 855-5182
The confirmation number (212) 709-6870 is now (212) 855-5202.
The following changes relate to Paragraph 5 of the Letter of Representations:
Old Telecopier Numbers Current Telecopier Number
(212) 709-1093 and (212) 709-1094 (212) 855-5278
The confirmation number (212) 709-6884 is now (212) 855-5280.
The new address is Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th floor
New York, NY 10041-0099
The following changes relate to Paragraph 7 of the Letter of Representations:
Old Telecopier Number Current Telecopier Number
(212) 709-1723 (212) 855-4555
The new address is Manager; Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th floor
New York, NY 10041-0099
The following changes relate to Paragraph 7 of the Letter of Representations;
Old Telecopier Numbers Current Telecopier Numbers
(212) 709-1723 and (212) 709-1686 (212) 855-4555 and (212) 855-4556
The confirmation number (212) 709-1270 is now (212) 855-4550.
<PAGE>
The new address for this Paragraph 9 is the same as that listed above,
referenced in Paragraph 7.
The following changes relate to Paragraph 10 of the Letter of Representations:
Such information shall be conveyed by automated notification. If the
circumstance prevent the funds paid to Cede & Co., as nominee of DTC, by 2:30
p.m. ET from equaling the dollar amount associated with detail payments by 12:00
noon ET Issuer or Agent must provide CUSIP-level reconciliation to DTC no later
than 2:30 pan. ET. Reconciliation can be provided by automated means or written
format.
The following changes relate to Paragraph 11 of the Letter of Representations:
To facilitate the payment standards, Issuer is required to remit free funds to
Agent by 1:00 p.m. ET on each payment date, or at such earlier time as required
by Agent to guarantee timely credit to the Dividend Deposit Account of Cede &
Co.
The following changes relate to Paragraph 12 of the Letter of Representations:
To facilitate the payment standards, Issuer is required to remit free funds to
Agent by 1:00 p.m. ET on each payment date, or at such earlier time as required
by Agent to guarantee timely credit to the Redemption Deposit Account of Cede &
Co. Issuer or Agent shall deliver Cusip-level detail regarding such payments to
DTC no later than 2:30 p.m. ET on each payment date.
The following changes relate to Paragraph 13 of the Letter of Representations:
To facilitate the payment standards, Issuer is required to remit free funds to
Agent by 1:00 pm. ET on each payment date, or at such earlier time as required
by Agent to guarantee timely credit to the Reorganization Deposit Account of
Cede & Co. Issuer or Agent shall deliver Cusip-level detail regarding such
payments to DTC no later than 2:30 p.m. ET on each payment date.
<PAGE>
SCHEDULE A
DLJ COMMERCIAL MORTGAGE CORP.,
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
CUSIP Principal Maturity Interest
Class Number Amount Date(1) Rate(2)
- ----- ------ ------ ---- ----
Class S 23322BEE4 N/A 04/10/2023 1.0980
Class A-1A-1 23322BEF1 $ 200,000,000 07/10/2008 6.0800
Class A-1A-2 23322BEF1 $ 18,788,000 07/10/2008 6.0800
Class A-lB-1 23322BEG9 $ 200,000,000 01/10/2009 6.4600
Class A-1B-2 23322BEG9 $ 200,000,000 01/10/2009 6.4600
Class A-1B-3 23322BEG9 $ 200,000,000 01/10/2009 6.4600
Class A-1B-4 23322BEG9 $ 86,205,000 01/10/2009 6.4600
Class A-2 23322BEH7 $ 58,887,000 02/10/2009 6.6000
Class A-3 23322BEJ3 $ 65,085,000 02/10/2009 6.7700
Class A-4 23322BEX2 $ 18,596,000 02/10/2009 6.9200
Class B-1 23322BEK0 $ 46,489,000 02/10/2009 7.4866
Class B-2 23322BEL8 $ 15,497,000 02/10/2009 7.4866
- ----------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in April, 1999. The interest rates are variable or otherwise
subject to change.
<PAGE>
SCHEDULE B
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities broken and dealers, banks, trust companies.
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit fin the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owner of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed. DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
-i-
<PAGE>
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co's
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to Cede &
Co.) as nominee of DTC. DTC's practice is to credit Direct Participants'
accounts, upon DTC's receipt of funds and corresponding detail information from
Issuer or Agent, on payable date in accordance with their respective holdings
shown on DTC's records. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such Participant and not of
DTC, Agent, or Issuer, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest to Cede &
Co. is the responsibility of Issuer or Agent, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to Agent [or Tender/Remarketing
Agent], and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to Agent [or Tender/Remarketing Agent]. The requirement for physical
delivery of Securities in connection with an optional tender or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records and followed by a
book-entry credit of tendered Securities to Agent [or Tender/Remarketing
Agent's] DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
<PAGE>
SCHEDULE D
[LOGO]
REPRESENTATIONS FOR ERISTA-RESTRICTED SECURITIES --
to be included in DTC Letter of Representations
Issuer and Agent recognize that DTC does not in any way undertake to, and
shall not have any responsibility to, monitor or ascertain whether a transfer of
Securities could give rise to a transaction prohibited or not otherwise
permissible under the Employee Retirement Income Security Act of 1974 or under
Section 4975 of the Internal Revenue Code of 1986 Issuer and Agent acknowledge
that: a) so long as Cede & Co. is the sole record owner of the Securities, it
shall be entitled to all voting rights in respect thereof and to receive the
full amount of all principal, premium, if any, and interest payable with respect
thereto; and b) DTC shall treat any DTC participant having securities credited
to its DTC accounts as entitled to the full benefits of ownership of such
Securities even if the crediting of such Securities to the DTC accounts of such
Participant results from transfers or failures to transfer in violation of such
laws. (The treatment by DTC of the effects of the crediting by it of Securities
to the accounts of DTC Participants shall not affect the rights of issuer or
purchasers, sellers, or holders of Securities against any DTC Participant.)
[5/94]
<PAGE>
SCHEDULE E
[LOGO]
REPRESENTATION FOR PRO-RATA REDUCTION OF PRINCIPAL
To be included in Letter of Representations
In the event of a pro rata reduction of principal, Trustee/Agent shall send
DTC written notice with respect to the dollar amount per $1,000 original face
value (or other minimum authorized denomination if less than $1,000 face value)
payable on each payment date allocated as to the interest and principal portions
thereof preferably 5, but not less than 2, business days prior to such payment
date. Such notices, which shall clearly indicate that they relate to a pro rata
reduction of principal and which shall also contain the current pool factor or
ratio and Trustee/Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (212) 855-4555, or if by mail or by any
other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
55 Water Street; 25th floor
New York, NY 10041-0099
[10/97]
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1031 10th Avenue S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of March 1, 1999 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, the undersigned as master servicer (in
such capacity, the "Master Servicer"), Banc One Mortgage Capital Markets, LLC as
special servicer, you as trustee (in such capacity, the "Trustee") and REMIC
administrator, the undersigned as Master Servicer hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
D-1-1
<PAGE>
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.
GE CAPITAL LOAN SERVICES, INC.
as Master Servicer
By:_____________________________
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1031 10th Avenue S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Pass-Through Certificates, Series
1999-CG1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of March 1, 1999 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, GE Capital Loan Services, Inc. as master
servicer, the undersigned as special servicer (the "Special Servicer"), you as
trustee (in such capacity, the "Trustee") and REMIC administrator, the
undersigned as Special Servicer hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Property:
Address:
Prospectus Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage 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.
D-2-1
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANC ONE MORTGAGE CAPITAL
MARKETS, LLC
as Special Servicer
By:
-------------------------------
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
FORM OF TRUSTEE REPORT
E-1-1
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
- --------------------------------------------------------------------------------
TRUSTEE REPORT
Table of Contents
==================================================================
STATEMENT SECTIONS PAGE(s)
- ----------------- -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property
Stratification Tables 7-9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14-15
Modified Loan Detail 16
Liquidated Loan Detail 17
==================================================================
<TABLE>
<CAPTION>
Underwriter Servicer Special Servicer
============================ ===================================== ======================================
<S> <C> <C>
Donaldson, Lufkin & Jenrette GE Capital Loan Services Inc. Banc One Mortgage Capital Markets, LLC
Securities Corporation 363 North Sam Houston Parkway, East 1717 Main Street, 14th Floor
277 Park Avenue Suite 1200 Dallas, TX 75201
New York, NY 10172 Houston, TX 77060
Contact: N. Dante LaRocca Contact: Shelly Shrimpton Contact: Paul G. Smyth
Phone Number: (212) 892-3000 Phone Number: (281) 405-7087 Phone Number: (214) 290-2505
============================ ==================================== ======================================
</TABLE>
This report has been compiled from information provided to Norwest by various
third parties, which may include the Servicer, Master Servicer, Special Servicer
and others. Norwest has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Norwest
expressly disclaims any responsibility for the accuracy or completeness of
information furnished by third parties.
- --------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A. Page 1 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Certificate Distribution Detail
<TABLE>
<CAPTION>
=========================================================================================================================
Pass-Through Original Beginning Principal Interest
Class CUSIP Rate Balance Balance Distribution Distribution
=========================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
A-1A 0.000000% 0.00 0.00 0.00 0.00
A-1B 0.000000% 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00
B-1 0.000000% 0.00 0.00 0.00 0.00
B-2 0.000000% 0.00 0.00 0.00 0.00
B-3 0.000000% 0.00 0.00 0.00 0.00
B-4 0.000000% 0.00 0.00 0.00 0.00
B-5 0.000000% 0.00 0.00 0.00 0.00
B-6 0.000000% 0.00 0.00 0.00 0.00
B-7 0.000000% 0.00 0.00 0.00 0.00
B-8 0.000000% 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00
D-1 0.000000% 0.00 0.00 0.00 0.00
D-2 0.000000% 0.00 0.00 0.00 0.00
R-I 0.000000% 0.00 0.00 0.00 0.00
R-II 0.000000% 0.00 0.00 0.00 0.00
R-III 0.000000% 0.00 0.00 0.00 0.00
=========================================================================================================================
Totals 0.00 0.00 0.00 0.00
=========================================================================================================================
<CAPTION>
===========================================================================================================
Realized Loss/ Current
Prepayment Additional Trust Total Ending Subordination
Class Penalties Fund Expenses Distribution Balance Level (1)
===========================================================================================================
<S> <C> <C> <C> <C> <C>
A-1A 0.00 0.00 0.00 0.00 0.00%
A-1B 0.00 0.00 0.00 0.00 0.00%
A-2 0.00 0.00 0.00 0.00 0.00%
A-3 0.00 0.00 0.00 0.00 0.00%
A-4 0.00 0.00 0.00 0.00 0.00%
B-1 0.00 0.00 0.00 0.00 0.00%
B-2 0.00 0.00 0.00 0.00 0.00%
B-3 0.00 0.00 0.00 0.00 0.00%
B-4 0.00 0.00 0.00 0.00 0.00%
B-5 0.00 0.00 0.00 0.00 0.00%
B-6 0.00 0.00 0.00 0.00 0.00%
B-7 0.00 0.00 0.00 0.00 0.00%
B-8 0.00 0.00 0.00 0.00 0.00%
C 0.00 0.00 0.00 0.00 0.00%
D-1 0.00 0.00 0.00 0.00 0.00%
D-2 0.00 0.00 0.00 0.00 0.00%
R-I 0.00 0.00 0.00 0.00 0.00%
R-II 0.00 0.00 0.00 0.00 0.00%
R-III 0.00 0.00 0.00 0.00 0.00%
===========================================================================================================
Totals 0.00 0.00 0.00 0.00
===========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================================================
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalties Distribution Amount
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S 0.000000% 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the designated
class and (ii) the ending certificate balance of all classes which are not
subordinate to the designated class and dividing the result by (A).
Copyright 1997, Norwest Bank Minnesota, N.A. Page 2 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
- --------------------------------------------------------------------------------
Certificate Factor Detail
<TABLE>
<CAPTION>
====================================================================================================================
Beginning Principal Interest Prepayment Realized Loss/ Ending
Class CUSIP Balance Distribution Distribution Penalties Additional Trust Balance
Fund Expenses
====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-6 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-7 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B-8 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-III 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
====================================================================================================================
</TABLE>
===============================================================================
Beginning Ending
Class CUSIP National Interest Prepayment Notional
Amount Distribution Penalties Amount
===============================================================================
S 0.00000000 0.00000000 0.00000000 0.00000000
===============================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 3 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Reconciliation Detail
<TABLE>
<CAPTION>
Advance Summary Servicing Fee Breakdowns
<S> <C> <C> <C>
P & I Advances Outstanding 0.00 Current Period Accrued Master Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servicing Fees 0.00
Reimbursement for Interest on Advances 0.00 Plus Master Servicing Fees for Delinquent Payments Received 0.00
Paid from general collections Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
</TABLE>
<TABLE>
<CAPTION>
Certificate Interest Reconciliation
====================================================================================================================================
Accrued Net Aggregate Distributable Distributable Additional Remaining Unpaid
Certificate Prepayment Certificate Certificate Interest Trust Fund Interest Distributable
Class Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
S 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 4 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Other Required Information
<TABLE>
<S> <C>
Available Distribution Amount 0.00 Cumulative Realized Losses
Class A-1A 0.00
Class A-1B 0.00
Original Number of Outstanding Loans 0 Class A-2 0.00
Class A-3 0.00
Aggregate Number of Outstanding Loans 0 Class A-4 0.00
Class B-1 0.00
Class B-2 0.00
Aggregate Stated Principal Balance of Loans 0.00 Class B-3 0.00
Class B-4 0.00
Aggregate Unpaid Principal Balance of Loans 0.00 Class B-5 0.00
Class B-6 0.00
Class B-7 0.00
Aggregate Amount of Master Servicing Fee 0.00 Class C 0.00
Aggregate Amount of Special Servicing Fee 0.00 Appraised Reduction Amount
Aggregate Amount of Trustee Fee 0.00 ============================================================
Appraisal Date Appraisal
Aggregate Trust Fund Expenses 0.00 Loan Reduction Reduction
Number Amount Effected
Interest Reserve Deposit 0.00 ============================================================
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00 Total
============================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 5 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Ratings Detail
<TABLE>
<CAPTION>
====================================================================================================================
Original Ratings Current Ratings (1)
Class CUSIP ----------------------------------- -----------------------------------
DCR Fitch Moody's S & P DCR Fitch Moody's S & P
====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
S
A-1A
A-1B
A-2
A-3
A-4
B-1
B-2
B-3
B-4
B-5
B-6
B-7
B-8
C
D-1
D-2
====================================================================================================================
</TABLE>
NR - Designates that the class was not rated by the above agency at the time of
original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
<TABLE>
<S> <C> <C> <C>
Duff & Phelps Credit Rating Co. Fitch IBCA, Inc. Moody's Investors Service Standard & Poor's Rating Services
55 East Monroe Street One State Street Plaza 99 Church Street 26 Broadway
Chicago, Illinois 60603 New York, New York 10004 New York, New York 10007 New York, New York 10004
(312) 368-3100 (212) 908-0500 (212) 553-0300 (212) 208-8000
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 6 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Current Mortgage Loan and Property Stratification Tables
<TABLE>
<CAPTION>
Scheduled Balance State(3)
================================================================= =============================================================
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR(1) State Props. Balance Bal. (2) WAC Avg DSCR(1)
================================================================= =============================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
================================================================= ============================================================
Totals Totals
================================================================= ============================================================
</TABLE>
See footnotes on last page of this section.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 7 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
================================================================================
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio Loans Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
Property Type(3)
================================================================================
% of
Property # of Scheduled Agg. WAM Weighted
Type Props. Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
Note Rate
================================================================================
% of
Note # of Scheduled Agg. WAM Weighted
Rate Loans Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
Seasoning
================================================================================
% of
# of Scheduled Agg. WAM Weighted
Seasoning Loans Balance Bal. (2) WAC Avg DSCR(1)
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Current Mortgage Loan and Property Stratification Table
<TABLE>
<CAPTION>
Anticipated Remaining Term (ARD and Balloon Loans)
==========================================================================================================
% of
Anticipated Remaining # of Scheduled Agg. WAM Weighted
Term(2) Loans Balance Bal. (2) WAC Avg DSCR(1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Remaining Stated Term (Fully Amortizing Loans)
==========================================================================================================
% of
Remaining Stated # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR(1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Remaining Amortization Term (ARD and Balloon Loans)
==========================================================================================================
% of
Remaining Amortization # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR (1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Age of Most Recent NOI
==========================================================================================================
% of
Age of Most # of Scheduled Agg. WAM Weighted
Recent NOI Loans Balance Bal. (2) WAC Avg DSCR(1)
==========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
==========================================================================================================
Totals
==========================================================================================================
</TABLE>
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Trustee makes
no representations as to the accuracy of the data provided by the borrower for
this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CSSA
Standard Information Package.
(ii) An ARD Loan constitutes a "Hyper-Amortization Loan" as defined in the
offering document.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Mortgage Loan Detail
<TABLE>
<CAPTION>
===========================================================================================================================
Anticipated
Loan Property Interest Principal Gross Repayment Maturity
Number ODCR Type(1) City State Payment Payment Coupon Date Date
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===========================================================================================================================
Totals
===========================================================================================================================
<CAPTION>
===========================================================================================================================
Neg. Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Amount Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number (Y/N) Balance Balance Date Date Amount (2) (3)
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
===========================================================================================================================
Totals
===========================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Property Type Code (2) Resolution Strategy Code (3) Modification Code
---------------------- ---------------------------- ---------------------
<S> <C> <C> <C> <C>
MF - Multi-Family OF - Office 1 - Modification 7 - REO 1 - Maturity Date Extension
RT - Retail MU - Mixed Use 2 - Foreclosure 8 - Resolved 2 - Amortization Change
HC - Health Care LO - Lodging 3 - Bankruptcy 9 - Pending Return 3 - Principal Write-Off
IN - Industrial SS - Self Storage 4 - Extension to Master Servicer 4 - Combination
WH - Warehouse OT - Other 5 - Note Sale 10 - Deed in Lieu Of
MH - Mobile Home Park 6 - DPO Foreclosure
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Principal Prepayment Detail
<TABLE>
<CAPTION>
============================================================================================================================
Principal Prepayment Amount Prepayment Penalities
Offering Document ----------------------------------- -----------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
============================================================================================================================
<S> <C> <C> <C> <C> <C>
============================================================================================================================
Totals
============================================================================================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Historical Detail
<TABLE>
<CAPTION>
====================================================================================================================================
Delinquencies Prepayments Rate and Maturities
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance # Balance # Balance # Balance # Balance # Amount Amount Coupon Remit WAM
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Delinquency Loan Detail
</TABLE>
<TABLE>
<CAPTION>
=====================================================================================================================
Offering # of Current Outstanding Status of Resolution
Loan Document Months Paid Through P & I P & I Mortgage Strategy
Number Cross-Reference Delinq. Date Advances Advances Loan(1) Code(2)
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=====================================================================================================================
Totals
=====================================================================================================================
<CAPTION>
=====================================================================================================================
Current Outstanding
Loan Servicing Foreclosure Servicing Servicing REO
Number Transfer Date Date Advances Advances Bankruptcy Date Date
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
=====================================================================================================================
Totals
=====================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Status of Mortgage Loan (2) Resolution Strategy Code
--------------------------- ----------------------------
<S> <C> <C> <C>
A - Payment Not Received 2 - Two Months Delinquent 1 - Modification 7 - REO
But Still in Grace Period 3 - Three Or More Months Delinquent 2 - Foreclosure 8 - Resolved
B - Late Payment But Less 4 - Assumed Scheduled Payment 3 - Bankruptcy 9 - Pending Return
Than 1 Month Delinquent (Performing Matured Balloon) 4 - Extension to Master Servicer
0 - Current 7 - Foreclosure 5 - Note Sale 10 - Deed in Lieu Of
1 - One Month Delinquent 9 - REO 6 - DPO Foreclosure
</TABLE>
**Outstanding P & I Advances include the current period advance
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Specially Serviced Loan Detail - Part 1
<TABLE>
<CAPTION>
==================================================================================================================================
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest
Date Number Cross-Reference Date Code(1) Balance Type(2) State Rate
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
==================================================================================================================================
<CAPTION>
==================================================================================================================================
Net Remaining
Distribution Actual Operating NOI Note Maturity Amortization
Date Balance Income Date DSCR Date Date Term
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
==================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- ----------------------
<S> <C> <C> <C>
1 - Modification 7 - REO MF - Multi-Family OF - Office
2 - Foreclosure 8 - Resolved RT - Retail MU - Mixed Use
3 - Bankruptcy 9 - Pending Return HC - Health Care LO - Lodging
4 - Extension to Master Servicer IN - Industrial SS - Self Storage
5 - Note Sale 10 - Deed in Lieu Of WH - Warehouse OT - Other
6 - DPO Foreclosure MH - Mobile Home Park
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Specially Serviced Loan Detail - Part 2
<TABLE>
<CAPTION>
===================================================================================================================================
Offering Resolution Site
Distribution Loan Document Strategy Inspection
Date Number Cross-Reference Code(1) Date Comment
===================================================================================================================================
<S> <C> <C> <C> <C> <C>
===================================================================================================================================
<CAPTION>
===================================================================================================================================
Distribution Appraisal Appraisal Other REO
Date Phase 1 Date Date Value Property Revenue Comment
===================================================================================================================================
<S> <C> <C> <C> <C> <C>
===================================================================================================================================
</TABLE>
(1) Resolution Strategy Code
----------------------------
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed in Lieu Of
6 - DPO Foreclosure
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Modified Loan Detail
<TABLE>
<CAPTION>
===================================================================================================================================
Offering
Loan Document Pre-Modification Modification
Number Cross-Reference Balance Balance Modification Description
===================================================================================================================================
<S> <C> <C> <C> <C>
===================================================================================================================================
Total
===================================================================================================================================
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
DLJ Commercial Mortgage Corp.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
------------------------------------------
[LOGO] For Additional Information, please contact
Norwest Bank Minnesota, N.A. Leslie Gaskill
Corporate Trust Services (212) 515-5254
3 New York Plaza, 15th Floor Reports Available on the World Wide Web
New York, NY 10004 @ www.ctslink.com/cmbs
------------------------------------------
Payment Date: 04/12/1999
Record Date: 03/31/1999
Liquidated Loan Detail
<TABLE>
<CAPTION>
=====================================================================================================================
Final Recovery Offering Gross Proceeds
Loan Determination Docuument Appraisal Appraisal Actual Gross as a % of
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
=====================================================================================================================
Current Total
=====================================================================================================================
Cumulative Total
=====================================================================================================================
<CAPTION>
===========================================================================================
Aggregate Net Net Proceeds Repurchased
Loan Liquidation Liquidation as a % of Realized by Seller
Number Expenses Expenses Actual Balance Loss (Y/N)
===========================================================================================
<S> <C> <C> <C> <C> <C>
===========================================================================================
Current Total
===========================================================================================
Cumulative Total
===========================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT E-2A
FORM OF CSSA LOAN PERIODIC UPDATE FILE
E-2A-1
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
==================================== ======================================================================================
Specification Description/Comments
==================================== ======================================================================================
==================================== ======================================================================================
<S> <C>
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)
==================================== ======================================================================================
</TABLE>
==================================== =================================
Field Format
Field Name Number Type Example
==================================== =================================
==================================== =================================
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX9701A
Loan Id 3 AN 00000000012345
Prospectus Id 4 AN 123
Distribution Date 5 AN YYYYMMDD
Current Beginning Sched Balance 6 Numeric 100000.00
Current Ending Scheduled Balance 7 Numeric 100000.00
Paid To Date 8 AN YYYYMMDD
Current Index Rate 9 Numeric 0.09
Current Note Rate 10 Numeric 0.09
Maturity Date 11 AN YYYYMMDD
Servicer and Trustee Fee Rate 12 Numeric 0.00025
Fee Rate/Strip Rate 1 13 Numeric 0.00001
Fee Rate/Strip Rate 2 14 Numeric 0.00001
Fee Rate/Strip Rate 3 15 Numeric 0.00001
Fee Rate/Strip Rate 4 16 Numeric 0.00001
Fee Rate/Strip Rate 5 17 Numeric 0.00001
Net Pass-Through Rate 18 Numeric 0.0897
Next Index Rate 19 Numeric 0.09
Next Note Rate 20 Numeric 0.09
Next Rate Adjustment Date 21 AN YYYYMMDD
Next Payment Adjustment Date 22 AN YYYYMMDD
==================================== =================================
<TABLE>
<CAPTION>
==================================== ======================================================================================
Field Name Description/Comments
==================================== ======================================================================================
==================================== ======================================================================================
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Identification Number Assigned To Each Loan Group Within An Issue
Loan Id Unique Identification Number Assigned To Each Collateral Item In A Pool
Prospectus Id Unique Identification Number Assigned To Each Collateral Item In The Prospectus
Distribution Date Date Payments Made To Certificateholders
Current Beginning Sched Balance Outstanding Scheduled Principal Balance At The Beginning Of The Current Period
Current Ending Scheduled Balance Outstanding Scheduled Principal Balance At The End Of The Current Period
Paid To Date Due Date Of The Last Interest Payment Received
Current Index Rate Index Rate Used In The Determination Of The Current Period Gross Interest Rate
Current Note Rate Annualized Gross Rate Applicable To Calculate The Current Period Scheduled Interest
Maturity Date Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 2 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 3 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 4 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 5 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Net Pass-Through Rate Annualized Interest Rate Applicable To Calculate The Current Period Remittance Int.
Next Index Rate Index Rate Used In The Determination Of The Next Period Gross Interest Rate
Next Note Rate Annualized Gross Interest Rate Applicable To Calc Of The Next Period Sch. Interest
Next Rate Adjustment Date Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date Date Scheduled P&I Amount Is Next Scheduled To Change
==================================== ======================================================================================
</TABLE>
Page 1 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
==================================== =================================
Field Format
Field Name Number Type Example
==================================== =================================
==================================== =================================
Scheduled Interest Amount 23 Numeric 1000.00
Scheduled Principal Amount 24 Numeric 1000.00
Total Scheduled P&I Due 25 Numeric 1000.00
Neg am/Deferred Interest Amount 26 Numeric 1000.00
Unscheduled Principal Collections 27 Numeric 1000.00
Other Principal Adjustments 28 Numeric 1000.00
Liquidation/Prepayment Date 29 AN YYYYMMDD
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00
Liquidation/Prepayment Code 32 Numeric 1
Most Recent ASER $ 33 Numeric 1000.00
Most Recent ASER Date 34 AN YYYYMMDD
Cumulative ASER $ 35 Numeric 1000.00
Actual Balance 36 Numeric 100000.00
Total P&I Advance Outstanding 37 Numeric 1000.00
Total T&I Advance Outstanding 38 Numeric 1000.00
Other Expense Advance Outstanding 39 Numeric 1000.00
Status of Loan 40 AN 1
In Bankruptcy 41 AN Y
Foreclosure Date 42 AN YYYYMMDD
REO Date 43 AN YYYYMMDD
Bankruptcy Date 44 AN YYYYMMDD
Net Proceeds Received on Liquidation 45 Numeric 100000.00
Liquidation Expense 46 Numeric 100000.00
Realized Loss to Trust 47 Numeric 10000.00
Date of Last Modification 48 AN YYYYMMDD
Modification Code 49 Numeric 1
Modified Note Rate 50 Numeric 0.09
Modified Payment Rate 51 Numeric 0.09
Preceding Fiscal Year Revenue 52 Numeric 1000.00
Preceding Fiscal Year Expenses 53 Numeric 1000.00
Preceding Fiscal Year NOI 54 Numeric 1000.00
Preceding Fiscal Year Debt Svc Amt. 55 Numeric 1000.00
Preceding Fiscal Year DSCR 56 Numeric 2.55
==================================== =================================
<TABLE>
<CAPTION>
==================================== ======================================================================================
Field Name Description/Comments
==================================== ======================================================================================
==================================== ======================================================================================
<S> <C>
Scheduled Interest Amount Scheduled Gross Interest Payment Due For The Current Period
Scheduled Principal Amount Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due Scheduled Principal And Interest Payment Due For The Current Period
Neg am/Deferred Interest Amount Negative Amortization/Deferred Interest Amount Due For The Current Period
Unscheduled Principal Collections Unscheduled Payments Of Principal Received During The Related Collection Period
Other Principal Adjustments Unscheduled Principal Adjustments For The Related Collection Period
Liquidation/Prepayment Date Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd Additional Payment Req'd From Borrower Due To Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) Scheduled Gross Interest Applicable To The Prepayment Amount
Liquidation/Prepayment Code See Liquidation/Prepayment Codes Legend
Most Recent ASER $ Excess Of The Principal Balance Over The Defined Appraisal Percentage
Most Recent ASER Date Date ASER Amount Applied To Loan
Cumulative ASER $ Cumulative ASER Amount
Actual Balance Outstanding Actual Principal Balance At The End Of The Current Period
Total P&I Advance Outstanding Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding Outstanding Taxes & Insurance Advances At The End Of The Current Period
Other Expense Advance Outstanding Other Outstanding Advances At The End Of The Current Period
Status of Loan See Status Of Loan Legend
In Bankruptcy Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date Date Of Foreclosure
REO Date Date Of REO
Bankruptcy Date Date Of Bankruptcy
Net Proceeds Received on Liquidation Net Proceeds Rec'd On Liquidation To Be Remitted To The Tr Per The Tr Doc'n
Liquidation Expense Expenses Associated With The Liq'n To Be Netted From The Tr Per The Tr Doc'n
Realized Loss to Trust Liquidation Balance Less Net Liquidation Proceeds Received
Date of Last Modification Date Loan Was Modified
Modification Code See Modification Codes Legend
Modified Note Rate Note Rate Loan Modified To ----------------------------------
Modified Payment Rate Payment Rate Loan Modified To All Financial Update Fields Are
Preceding Fiscal Year Revenue Preceding Fiscal Year Revenue Calculated and/or Presented In The
Preceding Fiscal Year Expenses Preceding Fiscal Year Expenses Manner Described In The Associated
Preceding Fiscal Year NOI Preceding Fiscal Year Net Op Income Trust Documentation.
Preceding Fiscal Year Debt Svc Amt. Preceding Fiscal Year Debt Svc Amount ----------------------------------
Preceding Fiscal Year DSCR Preceding Fiscal Yr Debt Svc Cvrge Ratio
==================================== ======================================================================================
</TABLE>
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
==================================== =================================
Field Format
Field Name Number Type Example
==================================== =================================
==================================== =================================
Preceding Fiscal Yr Physical Occ'y 57 Numeric 0.85
Preceding FY Financial As of Date 58 AN YYYYMMDD
Second Preceding FY Revenue 59 Numeric 1000.00
Second Preceding FY Expenses 60 Numeric 1000.00
Second Preceding FY NOI 61 Numeric 1000.00
Second Preceding FY Debt Service 62 Numeric 1000.00
Second Preceding FY DSCR 63 Numeric 2.55
Sec Preceding FY Physical Occ'y 64 Numeric 0.85
Sec Preceding FY Fin'l As of Date 65 AN YYYYMMDD
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00
Most Recent Fiscal YTD NOI 68 Numeric 1000.00
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00
Most Recent Fiscal YTD DSCR 70 Numeric 2.55
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD
Most Recent Appraisal Date 74 AN YYYYMMDD
Most Recent Appraisal Value 75 Numeric 100000.00
Workout Strategy Code 76 Numeric 1
Most Recent Spec Svc Transfer Date 77 AN YYYYMMDD
Most Recent Master Svc Return Date 78 AN YYYYMMDD
Date Asset Expected to Be Resolved 79 AN YYYYMMDD
Year Last Renovated 80 AN 1997
==================================== =================================
<TABLE>
<CAPTION>
==================================== ======================================================================================
Field Name Description/Comments
==================================== ======================================================================================
==================================== ======================================================================================
<S> <C>
Preceding Fiscal Yr Physical Occ'y Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue Second Preceding Fiscal Year Revenue ---------------------------
Second Preceding FY Expenses Second Preceding Fiscal Year Expenses Most Recent Fiscal YTD
Second Preceding FY NOI Second Preceding Fiscal Year Net Operating Income Figures Are From The Last
Second Preceding FY Debt Service Second Preceding Fiscal Year Debt Service Financials Processed By
Second Preceding FY DSCR Second Preceding Fiscal Year Debt Svc Cvrge Ratio The Servicer Pursuant
Sec Preceding FY Physical Occ'y Second Preceding Fiscal Year Physical Occupancy To The Terms Of The Trust
Sec Preceding FY Fin'l As of Date Second Preceding Fiscal Year Financial As Of Date Document, And Cover The
Most Recent Fiscal YTD Revenue Most Recent Fiscal Year To Date Revenue Period From The Start Date
Most Recent Fiscal YTD Expenses Most Recent Fiscal Year To Date Expenses To The End Date.
Most Recent Fiscal YTD NOI Most Recent Fiscal Year To Date Net Operating Income ---------------------------
Most Recent Fiscal YTD Debt Service Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR Most Recent Fiscal Year To Date Debt Service Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date The Date Of The Latest Available Appraisal For The Property
Most Recent Appraisal Value The Latest Available Appraisal Value For The Property
Workout Strategy Code See Workout Strategy Codes Legend
Most Recent Spec Svc Transfer Date Date Transferred To The Special Servicer
Most Recent Master Svc Return Date Date Returned To The Master Servicer
Date Asset Expected to Be Resolved Date Asset Is Expected To Be Resolved
Year Last Renovated Year Property Last Renovated
==================================== ======================================================================================
</TABLE>
<TABLE>
<CAPTION>
New Fields Added:
==================================== ================================= =================================================
<S> <C> <C> <C> <C>
Cap Rate Assigned 81 Numeric 10 Cap Rate Assigned
FCL Sale Date (Expected or Actual) 82 AN YYYYMMDD FCL Sale Date Expected or Actual
==================================== ================================= =================================================
</TABLE>
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
==================================
Liquidation/Prepayment Code
Legend
==================================
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase
5 Full Payoff At Maturity
6 DPO
7 Liquidation
==================================
===========================================================
Status of Mortgage Loan
Legend
===========================================================
A Payment Not Received But Still In Grace Period
B Late Payment But Less Than 1 Month Delinquent
0 Current
1 One Month Delinquent
2 Two Months Delinquent
3 Three Or More Months Delinquent
4 Assumed Sched Payment (Performing Matured Ball'n)
7 Foreclosure
9 REO
===========================================================
==============================
Modification Code
Legend
==============================
1 Maturity Date Extension
2 Amortization Change
3 Principal Write-Off
4 Combination
==============================
===========================================================
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
===========================================================
Page 4 of 4
<PAGE>
EXHIBIT E-2B
FORM OF CSSA PROPERTY FILE
E-2B-1
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA Property File
(Data Record Layout)
<TABLE>
<CAPTION>
- ----------------------------------------- -----------------------------------
Field Format
Field Name Number Type Example
- ----------------------------------------- -----------------------------------
<S> <C> <C> <C>
Transaction Id 1 AN XXX97001
Loan ID 2 AN XXX9701A
Prospectus Loan ID 3 AN 00000000012345
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3)
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN FL
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000
# Of Units/Beds/Rooms At Securitization 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at Securitization 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Loan Amount 21 Numeric 5900900
Ground Lease (Y/S/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraisal Value 25 Numeric 1000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
- ----------------------------------------- -----------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
CSSA
Field Name Description/Comments Loan
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
<S> <C> <C>
Transaction Id S1,P1
Loan ID S3,P3
Prospectus Loan ID From Offering Document S4,P4
Property ID Should contain Prospectus ID and propety identifier, e.g., 1001-001, 1000-002
Distribution Date P5
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed S75
Property Name S55
Property Address S56
Property City S57
Property State S58
Property Zip Code S59
Property County S60
Property Type Code S61
Year Built S64
Year Last Renovated P80
Net Square Feet At Securitization RT, IN, WH, OF, MU, SS,OT = SF S62
# Of Units/Beds/Rooms At Securitization MF, MHP, LO, HC = Units S63
Property Status 1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5= Released,
6= Same as at securitization
Allocated Percentage of Loan
at Securitization Issuer to allocate loan % attributable to property for multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current SPB for
associated loan.
Current Allocated Loan Amount Maintained by servicer. P7
Ground Lease (Y/S/N) Either Y=Yes, S=Subordinat, N= No ground lease S74
Other Escrow / Reserve Balances S77
Most Recent Appraisal Date P74
Most Recent Appraisal Value P75
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing P79
Foreclosure Date P42
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
</TABLE>
"Setup File" - Should be included on the diskette as part of the offering
document.
Page 1 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA Property File
(Data Record Layout)
<TABLE>
<CAPTION>
- ------------------------------------------ -----------------------------------
Field Format
Field Name Number Type Example
- ------------------------------------------ -----------------------------------
<S> <C> <C> <C>
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000
Operating Expenses At Securitization 46 Numeric 1000000
NOI At Securitization 47 Numeric 1000000
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
- ------------------------------------------ -----------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
CSSA
Field Name Description/Comments Loan
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
<S> <C> <C>
REO Date P43
Occupancy % Map to "Most Recent Fiscal YTD Phys. Occ." in CSSA P71
Occupancy Date Add a new field to the CSSA Loan file. P71
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Square Feet of Largest Tenant
2nd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date S72
Revenue At Securitization S70
Operating Expenses At Securitization S71
NOI At Securitization S65
DSCR At Securitization S66
Appraisal Value At Securitization S67
Appraisal Date At Securitization S68
Physical Occupancy At Securitization S69
Date of Last Inspection
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
</TABLE>
"Setup File" - Should be included on the diskette as part of the offering
document.
Page 2 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA Property File
(Data Record Layout)
<TABLE>
<CAPTION>
- ------------------------------------------ -----------------------------------
Field Format
Field Name Number Type Example
- ------------------------------------------ -----------------------------------
<S> <C> <C> <C>
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1,000,000
Preceding Fiscal Year Expenses 55 Numeric 1,000,000
Preceding Fiscal Year NOI 56 Numeric 1,000,000
Preceding Fiscal Year Debt Service Amt. 57 Numeric 1,000,000
Preceding Fiscal Year DSCR 58 Numeric 1.30
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1,000,000
Second Preceding FY Expenses 62 Numeric 1,000,000
Second Preceding FY NOI 63 Numeric 1,000,000
Second Preceding FY Debt Service 64 Numeric 1,000,000
Second Preceding FY DSCR 65 Numeric 1.30
Sec Preceding FY Physical Occupancy 66 Numeric 0.90
- ------------------------------------------ -----------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
CSSA
Field Name Description/Comments Loan
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
<S> <C> <C>
Preceding FY Financial As of Date P58
Preceding Fiscal Year Revenue P52
Preceding Fiscal Year Expenses P53
Preceding Fiscal Year NOI P54
Preceding Fiscal Year Debt Service Amt. P55
Preceding Fiscal Year DSCR P56
Preceding Fiscal Year Physical Occupancy P57
Sec Preceding FY Financial As of Date P65
Second Preceding FY Revenue P59
Second Preceding FY Expenses P60
Second Preceding FY NOI P61
Second Preceding FY Debt Service P62
Second Preceding FY DSCR P63
Sec Preceding FY Physical Occupancy P64
- ----------------------------------------- ---------------------------------------------------------------------------- -----------
</TABLE>
"Setup File" - Should be included on the diskette as part of the offering
document.
Page 3 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA Property File
(Data Record Layout)
<TABLE>
<CAPTION>
- ---------------------------------------------- ------------------------------------------------------------------------------------
Field Name Relationship to Corresponding CSSA 100.1 Field
- ---------------------------------------------- ------------------------------------------------------------------------------------
<S> <C>
Transaction Id Same as CSSA Loan File
Loan ID Same as CSSA Loan File
Prospectus Loan ID Same as CSSA Loan File
Property ID
Distribution Date Same as CSSA Loan File
Cross-Collateralized Loan Grouping
Property Name If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with"Various."
Property Address If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with"Various."
Property City If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State If Multi-Prop, and all same then populate S58 with State, otherwise, "Various".
Missing info= "incomplete"
Property Zip Code If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County If Multi-Prop, and all same then populate S60 with County, otherwise, "Various".
Missing info= "incomplete"
Property Type Code If Multi-Prop and all same then populate S61 with property type otherwise "Various".
Missing Info ="incomplete"
Year Built If Multi-Prop, and all same then populate S64 with year otherwise, "000000".
Year Last Renovated If Multi-Prop, and all same then populate P80 with year otherwise, "000000".
Net Square Feet At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
# Of Units/Beds/Rooms At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
Property Status If multi-prop and all same than populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at Securitization No field needed in Cssa Loan file
Current Allocated Percentage No field needed in Cssa Loan file
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) If any property is Y, or S then S74=Y
Other Escrow / Reserve Balances If any property populated, then S77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate P74 with date, otherwise, "000000".
Most Recent Appraisal Value Roll-up to CSSA Loan File if populated. If missing any appraisal value, than
populate P75 with "000000)
Date Asset is Expected to Be Resolved If Multi-Prop, latest date from affiliated properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate P42 with date, otherwise, "000000".
- ---------------------------------------------- ------------------------------------------------------------------------------------
</TABLE>
"Setup File" - Should be included on the diskette as part of the offering
document.
Page 4 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA Property File
(Data Record Layout)
<TABLE>
<CAPTION>
- ---------------------------------------------- ------------------------------------------------------------------------------------
Field Name Relationship to Corresponding CSSA 100.1 Field
- ---------------------------------------------- ------------------------------------------------------------------------------------
<S> <C>
REO Date If Multi-Prop, and all same then populate P43 with date, otherwise, "000000".
Occupancy % [Weighted Average] For P71=Sum((Curr. Allocated % Prop A) *(Occupancy Prop A)...
(Curr. Allocated % Prop Z) * (Occupancy Prop Z)). If missing one, then, "00000"
Occupancy Date If Multi-Prop, and all same then populate with date, otherwise, "various+K62".
Date Lease Rollover Review No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months No Roll up to the CSSA loan format.
Largest Tenant No Roll up to the CSSA loan format.
Square Feet of Largest Tenant No Roll up to the CSSA loan format.
2nd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant No Roll up to the CSSA loan format.
3rd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant No Roll up to the CSSA loan format.
Fiscal Year End Month No Roll up to the CSSA loan format.
Securitization Financials As Of Date If Multi-Prop, and all same then populate S72 with date, otherwise, "000000".
Revenue At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Operating Expenses At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S71 with "0000"
NOI At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S85 with "0000"
DSCR At Securitization [Weighted Average] S66=Sum((Allocated % at Sec. Prop A) *(DSCR Prop A)...
((Allocated % at Sec. Prop Z) * (DSCR Prop Z). If missing one, "00000"
Appraisal Value At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Appraisal Date At Securitization If Multi-Prop, and all same then populate S68 with date, otherwise, "000000".
Physical Occupancy At Securitization Weighted Average
Date of Last Inspection
- ---------------------------------------------- ------------------------------------------------------------------------------------
</TABLE>
"Setup File" - Should be included on the diskette as part of the offering
document.
Page 5 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA Property File
(Data Record Layout)
<TABLE>
<CAPTION>
- ---------------------------------------------- ------------------------------------------------------------------------------------
Field Name Relationship to Corresponding CSSA 100.1 Field
- ---------------------------------------------- ------------------------------------------------------------------------------------
<S> <C>
Preceding FY Financial As of Date If Multi-Prop, and all same then populate P58 with date,
otherwise, "000000+K23K46".K1
Preceding Fiscal Year Revenue No Roll up to the CSSA loan format.
Preceding Fiscal Year Expenses No Roll up to the CSSA loan format.
Preceding Fiscal Year NOI No Roll up to the CSSA loan format.
Preceding Fiscal Year Debt Service Amt. No Roll up to the CSSA loan format.
Preceding Fiscal Year DSCR No Roll up to the CSSA loan format.
Preceding Fiscal Year Physical Occupancy No Roll up to the CSSA loan format.
Sec Preceding FY Financial As of Date No Roll up to the CSSA loan format.
Second Preceding FY Revenue No Roll up to the CSSA loan format.
Second Preceding FY Expenses No Roll up to the CSSA loan format.
Second Preceding FY NOI No Roll up to the CSSA loan format.
Second Preceding FY Debt Service No Roll up to the CSSA loan format.
Second Preceding FY DSCR No Roll up to the CSSA loan format.
Sec Preceding FY Physical Occupancy No Roll up to the CSSA loan format.
- ---------------------------------------------- ------------------------------------------------------------------------------------
</TABLE>
"Setup File" - Should be included on the diskette as part of the offering
document.
Page 6 of 6
<PAGE>
EXHIBIT E-2C
FORM OF CSSA LOAN SET-UP FILE
E-2C-1
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Specification Description/Comments
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
<S> <C>
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)
- -------------------------------------------------------------------------------------------------------------
</TABLE>
- ------------------------------------------------------------
Field Format
Field Name Number Type Example
- ------------------------------------------------------------
- ------------------------------------------------------------
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX9701A
Loan Id 3 AN 00000000012345
Offering Document Loan Id 4 AN 123
Original Note Amount 5 Numeric 1000000.00
Original Term Of Loan 6 Numeric 240
Original Amortization Term 7 Numeric 360
Original Note Rate 8 Numeric 0.095
Original Payment Rate 9 Numeric 0.095
First Loan Payment Due Date 10 AN YYYYMMDD
Grace Days Allowed 11 Numeric 10
Interest Only (Y/N) 12 AN Y
Balloon (Y/N) 13 AN Y
Interest Rate Type 14 Numeric 1
Interest Accrual Method Code 15 Numeric 1
Interest in Arrears (Y/N) 16 AN Y
Payment Type Code 17 Numeric 1
Prepayment Lock-out End Date 18 AN YYYYMMDD
Yield Maintenance End Date 19 AN YYYYMMDD
Prepayment Premium End Date 20 AN YYYYMMDD
- ------------------------------------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Field Name Description/Comments
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Indentification Number Assigned To Each Loan Group Within An Issue
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Offering Document Loan Id Unique Indentification Number Assigned To Each Collateral Item In The Prospectus
Original Note Amount The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan Original Number Of Months Until Maturity Of Loan
Original Amortization Term Original Number Of Months Loan Amortized Over
Original Note Rate The Note Rate At Inception Of The Note
Original Payment Rate Original Rate Payment Calculated On
First Loan Payment Due Date First Payment Date On The Mortgage Loan
Grace Days Allowed Number Of Days From Due Date Borrower Is Permitted To Remit Payment
Interest Only (Y/N) Y=Yes, N=No
Balloon (Y/N) Y=Yes, N=No
Interest Rate Type 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 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) Y=Yes, N=No
Payment Type Code See Payment Type Code Legend
Prepayment Lock-out End Date Date After Which Loan Can Be Prepaid
Yield Maintenance End Date Date After Which Loan Can Be Prepaid Without Yield Maintenance
Prepayment Premium End Date Date After Which Loan Can Be Prepaid Without Penalty
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
- ---------------------------------------------------------------------
Field FormatE
Field Name Number Type Example
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Prepayment Terms Description 21 AN Text
ARM Index Code 22 AN A
First Rate Adjustment Date 23 AN YYYYMMDD
First Payment Adjustment Date 24 AN YYYYMMDD
ARM Margin 25 Numeric 0.025
Lifetime Rate Cap 26 Numeric 0.15
Lifetime Rate Floor 27 Numeric 0.05
Periodic Rate Increase Limit 28 Numeric 0.02
Periodic Rate Decrease Limit 29 Numeric 0.02
Periodic Pay Adjustment Max-% 30 Numeric 0.03
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00
Payment Frequency 32 Numeric 1
Rate Reset Frequency In Months 33 Numeric 1
Pay Reset Frequency In Months 34 Numeric 1
Rounding Code 35 Numeric 1
Rounding Increment 36 Numeric 0.00125
Index Look Back In Days 37 Numeric 45
Negative Amortization Allowed (Y/N) 38 AN Y
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075
Maximum Negate Allowed ($) 40 Numeric 25000.00
Remaining Term At Securitization 41 Numeric 240
Remaining Amor-Tm At Securitiz'n 42 Numeric 360
Maturity Date At Securitization 43 AN YYYYMMDD
Sched Prin Bal At Securitization 44 Numeric 1000000.00
Note Rate At Securitization 45 Numeric 0.095
Servicer And Trustee Fee Rate 46 Numeric 0.00025
Fee Rate / Strip Rate 1 47 Numeric 0.00001
Fee Rate / Strip Rate 2 48 Numeric 0.00001
Fee Rate / Strip Rate 3 49 Numeric 0.00001
Fee Rate / Strip Rate 4 50 Numeric 0.00001
Fee Rate / Strip Rate 5 51 Numeric 0.00001
Net Rate At Securitization 52 Numeric 0.0947
Periodic P&I Payment At Securitiz'n 53 Numeric 3000.00
- ---------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Field Name Description/Comments
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Prepayment Terms Description Description Of Prepayment Terms (Not To Exceed 50 Characters)
ARM Index Code See Arm Index Code Legend
First Rate Adjustment Date Date Note Rate Originally Changed
First Payment Adjustment Date Date Payment Originally Changed
ARM Margin Rate Added To Index Used In The Determination Of The Gross Interest Rate
Lifetime Rate Cap Maximum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Lifetime Rate Floor Minimum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Periodic Rate Increase Limit Maximum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Rate Decrease Limit Minimum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Pay Adjustment Max-% Maximum Periodic % Increase To The Borrowers P&I Payment Allowed Per The Loan Agreement
Periodic Pay Adjustment Max-$ Maximum Periodic Dollar Increase To The Borrowers P&I Payment Allowed Per The Loan Agreement
Payment Frequency 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually ...
Rate Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually ...
Pay Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually ...
Rounding Code Rounding Method For Sum Of Index Plus Margin (See Rounding Code Legend)
Rounding Increment Used In Conjunction With Rounding Code
Index Look Back In Days Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) Maximum Lifetime Percentage Increase To The Original Balance Allowed Per The Loan Agreement
Maximum Negate Allowed ($) Maximum Lifetime Dollar Increase To The Original Balance Allowed Per The Loan Agreement
Remaining Term At Securitization Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amor-Tm At Securitiz'n Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Securitization The Scheduled Maturity Date Of The Mortgage Loan At Securitization
Sched Prin Bal At Securitization The Scheduled Principal Balance Of The Mortgage Loan At Securitization
Note Rate At Securitization Cutoff Annualized Gross Interest Rate Applicable To The Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 2 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 3 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 4 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 5 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net Pass-Through Rate
Net Rate At Securitization Cutoff Annualized Interest Rate Applicable To The Calculation Of Remittance Interest
Periodic P&I Payment At Securitiz'n The Periodic Scheduled Principal & Interest Payment
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
- ------------------------------------------------------------------
Field Format
Field Name Number Type Example
- ------------------------------------------------------------------
- ------------------------------------------------------------------
# Of Properties 54 Numeric 13
Property Name 55 AN Text
Property Address 56 AN Text
Property City 57 AN Text
Property State 58 AN Text
Property Zip Code 59 AN Text
Property County 60 AN Text
Property Type Code 61 AN MF
Net Square Feet At Securitization 62 Numeric 25000
# Of Units/Beds/Rms At Securitiz'n 63 Numeric 75
Year Built 64 AN 1990
NOI At Securitization 65 Numeric 100000.00
DSCR At Securitization 66 Numeric 2.11
Appraisal Value At Securitization 67 Numeric 1000000.00
Appraisal Date At Securitization 68 AN YYYYMMDD
Physical Occupancy At Securitization 69 Numeric 0.88
Revenue At Securitization 70 Numeric 100000.00
Operating Expenses At Securitization 71 Numeric 100000.00
Securitization Financials As Of Date 72 AN YYYYMMDD
Recourse (Y/N) 73 AN Y
Ground Lease (Y/N) 74 AN Y
Cross-Collateralized Loan Grouping 75 Numeric 9(3)
Collection Of Escrows (Y/N) 76 AN Y
Collection Of Other Reserves (Y/N) 77 AN Y
Lien Position At Securitization 78 Numeric 1
- ------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Field Name Description/Comments
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
# Of Properties The Number Of Properties Underlying The Mortgage Loan
Property Name If Number Of Properties Is Greater Than 1 Then "Various"
Property Address If Number Of Properties Is Greater Than 1 Then "Various"
Property City If Number Of Properties Is Greater Than 1 Then "Various"
Property State If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code If Number Of Properties Is Greater Than 1 Then "Various"
Property County If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code If Number Of Properties Is Greater Than 1 Then "Various" (See Property Type Code Legend)
Net Square Feet At Securitization If Number Of Properties Is Greater Than 1 Then "000000"
# Of Units/Beds/Rms At Securitiz'n If Number Of Properties Is Greater Than 1 Then "000000"
Year Built If Number Of Properties Is Greater Than 1 Then "000000"
NOI At Securitization Net Operating Income At Securitization
DSCR At Securitization DSCR At Securitization
Appraisal Value At Securitization Appraisal Value At Securitization
Appraisal Date At Securitization Appraisal Date At Securitization
Physical Occupancy At Securitization Physical Occupancy At Securitization
Revenue At Securitization Revenue At Securitization
Operating Expenses At Securitization Expenses At Securitization
Securitization Financials As Of Date Securitization Financials As Of Date
Recourse (Y/N) Y=Yes, N=No
Ground Lease (Y/N) Y=Yes, N=No
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) Y=Yes, N=No
Collection Of Other Reserves (Y/N) Y=Yes, N=No
Lien Position At Securitization 1=First, 2=Second ...
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Type Code ARM Index Code Rounding Code
Legend Legend Legend
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Fully Amortizing A 11 FHLB COFI (1 Month) 1 Unrounded
2 Amortizing Balloon B 11 FHLB COFI (6 Month) 2 Nearest Percentage Increment
3 Interest Only/Balloon C 1 Year CMT Weekly Average Treasury 3 Up To Nearest Percentage Increment
4 Interest Only/Amortizing D 3 Year CMT Weekly Average Treasury 4 Down To Nearest Percentage Increment
5 Interest Only/Amortizing/Balloon E 5 Year CMT Weekly Average Treasury
6 Principal Only F Wall Street Journal Prime Rate
9 Other G 1 Month LIBOR
H 3 Month LIBOR
- ---------------------------------------- I 6 Month LIBOR ------------------------------------------
J National Mortgage Index Rate
All Others Use Short Text Description
--------------------------------------------
--------------------------------------------
Property Types Code
Legend
--------------------------------------------
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
--------------------------------------------
</TABLE>
Page 4 of 4
<PAGE>
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
E-3-1
<PAGE>
<TABLE>
<CAPTION>
Comparative Financial Status Report
as of
---------------------------------------------
Original Underwriting Information
Basis Year
- -------------------------------------------------------------------------------
Last
Property Paid Annual Financial
Prospectus Inspection Scheduled Thru Debt Info as of % Total $
ID Name City State Date Loan Balance Date Service Date Occupied Revenue NOI DSCR
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
- -----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating Information Preceding Annual Operating Information
as of Normalized as of Normalized
Financial Financial
Prospectus Info as of % Total $ Info as of % Total $
ID Date Occupied Revenue NOI DSCR Date Occupied Revenue NOI DSCR
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total:
- ----------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------
Trailing Financial or YTD Information Net Change
Actual Preceding & Basis
%
Prospectus FS Start FS End Total $ % Total
ID Date Date Revenue NOI DSCR Occupied Revenue DSCR
- --------------------------------------------------------------------------------
<S>
Total:
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
E-4-1
<PAGE>
<TABLE>
<CAPTION>
Delinquent Loan Status Report
as of
Other
- --------------------------------------------------------------------------------------------------------------------------
Scheduled Total P&I Total Advances
Property Sq. Ft. or Paid Thru Loan Advances to Expenses to (Taxes &
Prospectus ID Name Type City State Units Date Balance Date Date Escrow)
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Value using
Total Current Current Maturity LTM NOI *** Cap Rate NOI & Cap Valuation
Prospectus ID Exposure Monthly P&I Interest Rate Date Date LTM NOI LTM DSCR Assigned Rate Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
<CAPTION>
Appraisal Total
- -------------------------------------------------------------------------------------------------------------------------
BPO or Loss using Appraisal Expected
Internal 90% Appr. or Estimated Reduction Transfer Resolution FCL Start FCL Sale Workout
Prospectus ID Value** BPO Recovery % Realized Date Date Date Date Strategy Comments
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current & Special Servicer
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
* Workout Strategy should match the CSSA Loan 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
It is possible to combine the status codes if the loan is going in more than one
direction. (ie. FCL/MOD, BK/MOD, BK/FCL/DPO)
** App - Appraisal, BPO - Broker Opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and Servicers -
to be provided by third party.
<PAGE>
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
E-5-1
<PAGE>
<TABLE>
<CAPTION>
Historical Loan Modification Report
as of
- ------------------------------------------------------------------------------------------------
Balance
MOD/ When Sent Balance at the # Mths
Prospectus Extension Effect to Special Effective Date of for Rate
ID City State Flag Date Servicer Rehabilitation Old Rate Change
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------
Total For All Loans:
Total For Loans in Current Month:
# of Loans $ Balance
Modifications: 0 $0.00
Maturity Date Extensions: 0 $0.00
------------------------------------------------
Total: 0 $0.00
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate at
the time of the modification.
- ------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Total # (2) Est.
Mths for (1) Realized Future
Prospectus New Old New Change of Loss to Interest Loss
ID Rate Old P&I New P&I Maturity Maturity MOD Trust to Trust Comment
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT E-6
FORM OF HISTORICAL LOSS ESTIMATE REPORT
E-6-1
<PAGE>
<TABLE>
<CAPTION>
Historical Loss Estimate Report(REO-Sold or Disc Payoff)
as of
- ------------------------------------------------------------------------------------------------------------------------------
Last
% Appraisal or Effect Net Amt
Prospectus Property Received Brokers Date of Received Scheduled Total P&I
ID Name Type City State From Sale Opinion Sale Sales Price from Sale Balance Advanced
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
Total all Loans: $0.00
Current Month Only: $0.00
- ------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
Date Loss Minor Adj Loss % of
Prospectus Total Servicing Fees Actual Losses Passed Minor Adj to Passed Total Loss with Scheduled
ID Expenses Expenses Net Proceeds Passed Thru Thru Trust Thru Adjustments Balance
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT E-7
FORM OF NOI ADJUSTMENT WORKSHEET
E-7-1
<PAGE>
NOI ADJUSTMENT WORKSHEET for "1998"
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PROPERTY OVERVIEW
------------
Prospectus Number
------------
GE Loan Number
---------------------------------------------------------------------
Asset Name
---------------------------------------------------------------------
Property Type:
---------------------------------------------------------------------
Property Address:
---------------------------------------------------------------------
#REF!
------------------------
Year Built/ Year Renovated:
-----------------------------------------------------------
Borrower Adjustment Normalized
-----------------------------------------------------------
Occupancy Rate *
-----------------------------------------------------------
Average Rental Income
-----------------------------------------------------------
* Occupancy rates are year end or the ending date of the
financial statement for the period.
INCOME:
Number of Months Annualized 1998
-----------------------------------------------------------
Borrower
Actual Adjustment Normalized
-----------------------------------------------------------
Rental Income $0 $0 $0
-----------------------------------------------------------
Percentage Rents $0 $0 $0
-----------------------------------------------------------
Expense Recoveries $0 $0 $0
-----------------------------------------------------------
Other Income $0 $0 $0
-----------------------------------------------------------
Less: Vacancies $0 $0 $0
-----------------------------------------------------------
Effective Gross Income $0 $0 $0
-----------------------------------------------------------
Normalized - Full year financial statements that have been
reviewed by the underwriter or the Servicer
** Servicer will not be expected to "Normalize" these YTD numbers
OPERATING EXPENSES:
-----------------------------------------------------------
Real Estate Taxes $0 $0 $0
-----------------------------------------------------------
Property Insurance $0 $0 $0
-----------------------------------------------------------
Utilities $0 $0 $0
-----------------------------------------------------------
General & Administration $0 $0 $0
-----------------------------------------------------------
Repairs and Maintenance $0 $0 $0
-----------------------------------------------------------
Management Fees $0 $0 $0
-----------------------------------------------------------
Payroll & Benefits Expense $0 $0 $0
-----------------------------------------------------------
Advertising & Marketing $0 $0 $0
-----------------------------------------------------------
Professional Fees $0 $0 $0
-----------------------------------------------------------
Other Expenses $0 $0 $0
-----------------------------------------------------------
Ground Rent $0 $0 $0
-----------------------------------------------------------
Total Operating Expenses $0 $0 $0
-----------------------------------------------------------
-----------------------------------------------------------
Operating Expense Ratio
-----------------------------------------------------------
-----------------------------------------------------------
Net Operating Income $0 $0 $0
-----------------------------------------------------------
-----------------------------------------------------------
Leasing Commissions $0 $0 $0
-----------------------------------------------------------
Tenant Improvements $0 $0 $0
-----------------------------------------------------------
Replacement Reserve $0 $0 $0
-----------------------------------------------------------
Total Capital Items $0 $0 $0
-----------------------------------------------------------
-----------------------------------------------------------
N.O.I. After Capital Items $0 $0 $0
-----------------------------------------------------------
-----------------------------------------------------------
Debt Service (per Servicer) $0 $0 $0
-----------------------------------------------------------
Cash Flow after Debt Service $0 $0 $0
-----------------------------------------------------------
-----------------------------------------------------------
DSCR: (NOI/Debt Service)
-----------------------------------------------------------
-----------------------------------------------------------
DSCR: (after Reserves\Capital EXP.)
-----------------------------------------------------------
-----------------------------------------------------------
Source of Financial Data:
-----------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
Notes and Assumptions:
- ------------------------------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the Borrower's numbers
Income:
Expense:
Capital Items:
</TABLE>
<PAGE>
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS REPORT
E-8-1
<PAGE>
OPERATING STATEMENT ANALYSIS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PROPERTY OVERVIEW
----------
Prospectus Number
----------
GE Loan Number
----------------------------------------------------------------------
Property Name
----------------------------------------------------------------------
Property Type:
----------------------------------------------------------------------
Property Address, City, State:
----------------------------------------------------------------------
Net Rentable Square Feet
or # of Units:
-----------------------
Year Built/ Year Renovated:
----------------------------------------------------------------------
Year of Operations Underwriting 1998 YTD
----------------------------------------------------------------------
Occupancy Rate *
----------------------------------------------------------------------
Average Rental Income
----------------------------------------------------------------------
* Occupancy rates are year end or the ending date of the financial
statement for the period.
<CAPTION>
INCOME: No. of Mos.
-----------
Number of Months 3rd Prior Year 2nd Prior Year Prior Year Current Year 0
----------------------------------------------------------------------------------------------
Period Ended Underwriting 1998
Statement Classification Base Line Normalized Normalized Normalized Normalized
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Rental Income $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Percentage Rents $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Expense Recoveries $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Other Income $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Less: Vacancies $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Effective Gross Income $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Normalized - Full year financial statements that have been reviewed by the underwriter
or the Servicer
** Servicer will not be expected to "Normalize" these YTD numbers
<CAPTION>
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Real Estate Taxes $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Property Insurance $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Utilities $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
General & Administation $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Repairs and Maintenance $0 $0 $0 $0 $0 $0
----------------------------------------------------------------------------------------------
Management Fees $0 $0 $0 $0 $0 $0
-----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Payroll & Benefits Expense $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Advertising & Marketing $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Professional Fees $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Other Expenses $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Ground Rent $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Total Operating Expenses $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Operating Expense Ratio
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Net Operating Income $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Leasing Commissions $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Tenant Improvements $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Replacement Reserve $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Total Capital Items $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
N.O.I. After Capital Items $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Debt Service (per Servicer) $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
Cash Flow after Debt Service $0 $0 $0 $0 $0 $0
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
DSCR: (NOI/Debt Service)
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
DSCR: (after Reserves\Capital EXP.)
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Source of Financial Data:
-------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
</TABLE>
Notes and Assumptions:
- -------------------------------------------------------------------------------
The years shown above will roll always showing a three year history.
@ Base line operating information is YTD as of:
Income:
Expense:
Capital Items:
<PAGE>
EXHIBIT E-9
FORM OF REO STATUS REPORT
E-9-1
<PAGE>
Reo Status Report
as of
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Other
Scheduled Total P&I Total Advances
Property Sq. Ft. orPaid Thru Loan Advances to Expenses (Taxes &
Prospectus ID Name Type City State Units Date Balance Date To Date Escrow)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------------------------------------------
Value Appraisal
Current LTM LTM Cap Rate using NOI BPO or
Total Monthly Maturity NOI NOI/ Assign Valuation & Cap Internal
Prospectus ID Exposure P&I Date Date DSC *** Date Rate Value**
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------------------------------------------
Total
Loss using Appraisal REO Pending
92% Appr. Estimated Reduction Transfer Acquisition Resolution
Prospectus ID or BPO Recovery % Realized Date Date Date Comments
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
App. - Appraisal, BPO - Brokers Opinion, Int - Internal
*** How to determine the cap rate is agreed upon by Underwriting and servicers
- to be provided by third party.
<PAGE>
EXHIBIT E-10
FORM OF WATCH LIST
E-10-1
<PAGE>
Servicer Watch List Report
as of
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Paid
Property Scheduled Thru Maturity
Prospectus ID Name Type City State Loan Balance Date Date LTM* DSCR Comment/Reason on Watch List
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total
</TABLE>
* LTM - Last 12 months either trailing or last annual.
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, Class ______ Certificates having an
initial aggregate Certificate Principal Balance as of March 19, 1999
(the "Closing Date") of $__________ [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of March 1, 1999, among DLJ Commercial Mortgage Corp., as
Depositor, GE Capital Loan Services, Inc. as Master Servicer, Banc One Mortgage
Capital Markets, LLC, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates 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 Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any
F-1A-1
<PAGE>
other action with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security, which (in the case of any
of the acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the Transferor in this
matter reasonably believe that the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act (a "Qualified Institutional Buyer") purchasing for its own account or for
the account of another person that is itself a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter has
relied upon the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a foreign
governmental agency or self-regulatory organization, which information
is as of a date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and within 18
months preceding such date of sale in the case of a foreign purchaser;
or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date within
16 months preceding the date of sale of the Transferred Certificates
in the case of a U.S. purchaser and within 18 months preceding such
date of sale in the case of a foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested on
a discretionary basis by the Transferee as of a specific date on or
since the close of the Transferee's most recent fiscal year, or, in
the case of a Transferee that is a member of a "family of investment
companies", as that term is defined in Rule 144A, a certification by
an executive officer of the investment adviser specifying the amount
of securities owned by the "family of investment companies" as of a
specific date on or since the close of the Transferee's most recent
fiscal year.
F-1A-2
<PAGE>
___ (e) Other. (Please specify brief description of method)______________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded: securities
of issuers that are affiliated with such entity; securities that are
part of an unsold allotment to or subscription by such entity, if such
entity is a dealer; securities of issuers that are part of such
entity's "family of investment companies", if such entity is a
registered investment company; bank deposit notes and certificates of
deposit; loan participations; repurchase agreements; securities owned
but subject to a repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity 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 may be valued at market;
and
(c) securities owned by subsidiaries of the entity that are consolidated
with the entity in its financial statements prepared in accordance
with generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of
the entity, except that, unless the entity is a reporting company
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, securities owned by such subsidiaries may not be included if
the entity itself is a majority-owned subsidiary that would be
included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
F-1A-3
<PAGE>
6. The Transferor or a person acting on its behalf has furnished, or caused
to be furnished, to the Transferee all information regarding (a) the Transferred
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, (d)
any credit enhancement mechanism associated with the Transferred Certificates,
and (e) all related matters, that the Transferee has requested.
Very truly yours,
___________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
F-1A-4
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, Class ______ Certificates having an
initial aggregate Certificate Principal Balance as of March 19, 1999
(the "Closing Date") of $__________ [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates, (the "Transferred Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of March 1, 1999, among DLJ Commercial Mortgage Corp., as
Depositor, GE Capital Loan Services, Inc., as Master Servicer, Banc One Mortgage
Capital Markets, LLC, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates 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 Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c)
F-1B-1
<PAGE>
otherwise approached or negotiated with respect to any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security with any
person in any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
__________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
F-1B-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, Class ______ Certificates having an
initial aggregate Certificate Principal Balance as of March 19, 1999
(the "Closing Date") of $__________ [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of March 1, 1999, among DLJ Commercial Mortgage Corp., as
Depositor, GE Capital Loan Services, Inc., as Master Servicer, Banc One Mortgage
Capital Markets, LLC, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act") and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in
F-2A-1
<PAGE>
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
__________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
F-2A-2
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
__________________________________
(Nominee)
By:________________________________
Name:______________________________
Title:_____________________________
F-2A-1
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $______________________(1) in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale in the case of a foreign bank or equivalent institution.
- ----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-2
<PAGE>
___ 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 Transferred Certificates in
the case of a U.S. savings and loan association, and not more than 18
months preceding such date of sale in the case of a foreign savings
and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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.)________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
F-2A-3
<PAGE>
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person 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 such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No 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
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
F-2A-4
<PAGE>
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
___________________________________
Print Name of Transferee
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
F-2A-5
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates described in the
Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, 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).
F-2A-6
<PAGE>
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
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No 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 Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
F-2A-7
<PAGE>
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
___________________________________
Print Name of Transferee or Adviser
By:________________________________
Name:______________________________
Title:_____________________________
IF AN ADVISER:
___________________________________
Print Name of Transferee
Date:______________________________
F-2A-8
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, Class ___ Certificates having an
initial aggregate Certificate Principal Balance as of March 19, 1999
(the "Closing Date") of $__________ [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates") pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of March 1, 1999, among DLJ
Commercial Mortgage Corp., as Depositor, GE Capital Loan Services, Inc., as
Master Servicer, Banc One Mortgage Capital Markets, LLC, as Special Servicer,
and Norwest Bank Minnesota, National Association, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
F-2B-1
<PAGE>
2. Transferee understands that (a) the Transferred 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 is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received (A) a certificate from
the prospective transferor substantially in the form attached as Exhibit F-1A to
the Pooling and Servicing Agreement; (B) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1B to the Pooling and
Servicing Agreement; and a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Pooling and Servicing Agreement; or (C) an Opinion of Counsel satisfactory
to the Certificate Registrar that the transfer may be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding the transfer from the prospective transferor and/or
prospective transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing 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 Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, 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
WHICH IS 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 HEREIN MAY BE MADE TO (A)
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
F-2B-2
<PAGE>
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS
CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED
INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE
501(a) OF REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL
THE EQUITY OWNERS CONSTITUTE ENTITIES DESCRIBED IN SUCH PARAGRAPHS.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred 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 the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs 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 Transferred
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.
F-2B-3
<PAGE>
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
___________________________________
(Transferee)
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
F-2B-4
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
___________________________________
(Nominee)
By:________________________________
Name:___________________________
Title:__________________________
F-2B-5
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE SUBORDINATED CERTIFICATES)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, Class ______ Certificates having an
initial Certificate Principal Balance as of March 19, 1999 (the
"Closing Date") of $________ [evidencing a _____% Percentage Interest
in the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 1999, among DLJ Commercial Mortgage Corp., as Depositor, GE Capital Loan
Services, Inc., as Master Servicer, Banc One Mortgage Capital Markets, LLC, as
Special Servicer, and Norwest Bank Minnesota, National Association, as Trustee
and REMIC administrator. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you as
Certificate Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a Keogh
plan or a collective investment fund or separate account in which such
plans, accounts or arrangements are invested, including an insurance
company general account, that is subject to ERISA or the Code (each, a
"Plan"), nor (B) a Person who is directly or indirectly purchasing the
Transferred Certificates on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan;
G-1
<PAGE>
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60; or
___ The Transferred Certificates being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-83, and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent, the
Seller, the Master Servicer, any Exemption-Favored Party, any Third Party
Originator, the Special Servicer, the REMIC Administrator, any Sub-Servicer
or any Mortgagor with respect to Mortgage Loans constituting more than 5%
of the aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or by
any Affiliate of such Person and (Z) agrees that it will obtain from each
of its Transferees to which it transfers a Transferred Certificate, a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y), together
with a written agreement that such Transferee will obtain from each of its
Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (X)
and (Y).
Very truly yours,
___________________________________
(Transferee)
By:________________________________
Name:______________________________
Title:_____________________________
G-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF RESIDUAL INTEREST CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999-CG1, Class [R-I]
[R-II] [R-III], evidencing a __% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
Permitted Transferee and will endeavor to remain a Permitted Transferee for so
long as it holds the Residual Interest Certificates, and (ii) is acquiring the
Residual Interest Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A Permitted Transferee is any Person other than
either a Disqualified Organization or a possession of the United States. (For
this purpose, a "Disqualified Organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed under the
Code on transfers of the Residual Interest Certificates to Non-Permitted
Transferees; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Interest
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-
H-1-1
<PAGE>
1(c) and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer is to enable the transferor to
impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Interest 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. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificate will only be owned,
directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is_____________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Interest Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificate to a Person other than the Transferee and clause (ii)(B) of
Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Interest Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Residual Interest Certificates.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Interest Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit H-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Interest Certificates to impede
H-1-2
<PAGE>
the assessment or collection of any tax and that it has at the time of such
transfer conducted a reasonable investigation of the financial condition of the
proposed transferee as contemplated by Treasury regulation Section
1.860E-1(c)(4)(i) and has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, an estate whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust as to which
(i) a court in the United States is able to exercise primary supervision over
the administration of the trust and (ii) one or more United States fiduciaries
have the right to control all substantial decisions of the trust.
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ______ day of ________________.
[NAME OF TRANSFEREE]
By:____________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_______________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this ______ day of __________________,
_________.
___________________________
[NOTARY PUBLIC]
COUNTY OF____________
STATE OF_____________
My Commission expires the _______ day of
_______, 19__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
RESIDUAL INTEREST CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, [Class R-I] [Class R-II] [Class R-III]
Certificates evidencing a ____% Percentage Interest in such Class (the
"Residual Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement, dated as of March 1, 1999 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp., as Depositor, Ge Capital Loan Services,
Inc., as Master Servicer, Banc One Mortgage Capital Markets, LLC, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee and REMIC
administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Interest 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 H-1. The Transferor does not know or believe that
any representation contained therein is false.
H-2-1
<PAGE>
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Interest Certificates may not be respected for United States income
tax purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
___________________________________
(Transferee)
By:________________________________
Name:______________________________
Title:_____________________________
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Commercial MBS Monitoring Department
[Facsimile No. (212) 553-0300]
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the Pooling and
Servicing Agreement, dated as of March 1, 1999 and relating to DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG1
(the "Agreement"). Capitalized terms used but not otherwise defined herein shall
have respective meanings assigned to them 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 the Rating Agency delivers to Norwest
Bank Minnesota, National Association, the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
I-1-1
<PAGE>
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,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:________________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By:________________________________
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement, dated as
of March 1, 1999, relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG1 (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 2.06 of the
Agreement, with the following corrections with respect to type of entity and
jurisdiction of organization: ____________________.
By:________________________________
Name:
Title:
I-2-1
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
Debtor:
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Secured Party:
Norwest Bank Minnesota,
National Association
3 New York Plaza
New York, NY 10004
Text:
See Exhibit 1 Attached Hereto
J-1-1
<PAGE>
EXHIBIT 1 to EXHIBIT J
This Exhibit 1 is attached to and incorporated in a financing statement
pertaining to DLJ Commercial Mortgage Corp. as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and Norwest Bank
Minnesota, National Association as trustee for the holders of the Series
1999-CG1 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee and REMIC administrator, GE
Capital Loan Services, Inc., as master servicer (in such capacity, the "Master
Servicer") and Banc One Mortgage Capital Markets, LLC, as special servicer (in
such capacity, the "Special Servicer"), relating to the issuance of the Debtor's
Commercial Mortgage Pass-Through Certificates, Series 1999-CG1 (collectively,
the "Series 1999-CG1 Certificates"). Capitalized terms used herein and not
defined shall have the respective meanings given to them in the Pooling and
Servicing Agreement. The attached financing statement covers all of the Debtor's
right (including the power to convey title thereto), title and interest in and
to the Trust Fund created pursuant to the Pooling and Servicing Agreement,
consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Mortgage Loan Schedule to the Pooling
and Servicing Agreement, which Mortgage Loan Schedule is attached
hereto as Exhibit B;
2. The related mortgages, deeds of trust or other similar instruments
securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage Note and
Mortgage (collectively, with such related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the Master Servicer pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Collection Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations
(including, without limitation, the Permitted Investments described on
Exhibit A hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
5. All REO Property;
J-1-2
<PAGE>
6. (a) the REO Account required to be maintained by the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations
(including, without limitation, the Permitted Investments described on
Exhibit A hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required to be
maintained by the Master Servicer or Special Servicer pursuant to the
Pooling and Servicing Agreement, and (b) all funds from time to time
on deposit in the Servicing Account(s) and Reserve Account(s);
8. (a) the Distribution Account required to be maintained by the Secured
Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations (including, without limitation, the Permitted
Investments described on Exhibit A hereto), and (d) the general
intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from
or under any such investments;
9. All insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be serviced by the Master
Servicer or Special Servicer; and
10. All income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER
J-1-3
<PAGE>
OBLIGATIONS (INCLUDING WITHOUT LIMITATION, PERMITTED INVESTMENTS) SHOULD NOT BE
CONSTRUED AS A CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION
(INCLUDING WITHOUT LIMITATION, ANY PERMITTED INVESTMENT) IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD
THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY
TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH
RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
J-1-4
<PAGE>
Exhibit A
The term "Permitted Investments" shall include any of the following
instruments, securities or other obligations:
(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, provided that each such
obligation is backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category of
Moody's Investors Service, Inc. (the "Rating Agency"), (or have
such lower rating as will not result in a qualification,
downgrading or withdrawal of the rating then assigned to any Class
of Certificates by the Rating Agency, as confirmed in writing to
the Trustee by the Rating Agency);
(iii) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt obligations
of such bank or trust Company are at the time of investment rated
in the highest short-term debt rating category of the Rating
Agency (or have such lower rating as will not result in a
qualification, downgrading or withdrawal of the rating then
assigned to any Class of Certificates by the Rating Agency, as
confirmed in writing to the Trustee, by the Rating Agency);
(iv) commercial paper of any corporation incorporated under the laws of
the United States or any state thereof (or of any corporation not
so incorporated, provided that 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), provided that such commercial paper is rated in the
highest short-term debt rating category of the Rating Agency (or
has such lower rating as will not result in a qualification,
downgrading or withdrawal of the rating then assigned to any Class
of Certificates by the Rating Agency (as confirmed in writing to
the Trustee by the Rating Agency);
(v) units of money market funds which maintain a constant net asset
value, provided that such units of money market funds are rated in
the highest applicable rating category of the Rating Agency (or
have such lower rating as will not result in a qualification,
downgrading or withdrawal of the rating
J-1-5
<PAGE>
then assigned to any Class of Certificates by the Rating Agency
(as confirmed in writing to the Trustee by the Rating Agency); or
(vi) any other obligation or security that is acceptable to the Rating
Agency and which will not result in a qualification, downgrading
or withdrawal of the rating then assigned to any Class of
Certificates by the Rating Agency (as confirmed in writing to
the Trustee by the Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) that no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity, (C) no
investment described hereunder may be sold prior to stated maturity if such sale
would result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) above, a fixed interest rate or an
interest rate that is tied to a single interest rate index plus a single fixed
spread; and provided, further, that each investment described hereunder must be
a "cash flow investment" (within the meaning of the REMIC Provisions).
J-1-6
<PAGE>
Exhibit B
MORTGAGE LOAN SCHEDULE
J-1-7
<PAGE>
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall
mean for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any Contractual Recurring Replacement Reserve for
such Mortgaged Property as indicated in the Private Offering Memorandum dated
March 15, 1999 relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG1 (the amounts described in this clause
(iii) to be prorated if "Net Operating Income" is being calculated for less than
a full fiscal year).
With respect to any Mortgaged Property "Operating Income" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds. Operating Income shall not include (a)
insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Operating Income but paid directly by any tenant to a
Person other than the Mortgagor except for real estate taxes paid directly to
any taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under space lease which is
the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, impositions, insurance premiums, management fees, payments
to third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
actually paid for by the Mortgagor. Operating Expenses shall not include
interest, principal and premium, if any, due under the Mortgage Note or
otherwise in connection with any other secured indebtedness, income taxes,
extraordinary capital improvements costs, or any non-cash charge or expense such
as depreciation.
K-1
<PAGE>
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1
In accordance with Section 8.12(b) of the Pooling and Servicing Agreement,
dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan
Services, Inc., as master servicer, Banc One Mortgage Capital Markets, LLC, as
special servicer, and Norwest Bank Minnesota, National Association as trustee
(in such capacity, the "Trustee") and REMIC administrator, with respect to the
DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through Certificates,
Series 1999-CG1 (the "Certificates"), the undersigned hereby certifies and
agrees as follows:
1. The undersigned is a beneficial holder of $___________ aggregate
[Certificate Principal Balance/Certificate Notional Amount] of the
Class ____ Certificates.
2. The undersigned is requesting [access to the information on the
Trustee's Intenet Website pursuant to Section 4.02(a)] or [the
information identified on the schedule attached hereto pursuant to
Section 8.12(b)] of the Pooling and Servicing Agreement (the
"Information").
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior
written consent of the Trustee, be disclosed by the undersigned or by
its officers, directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may provide all or any
part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but
only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential;
L-1-1
<PAGE>
and provided that the undersigned may provide all or any part of the
Information to its auditors, legal counsel and regulators.
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 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.
L-1-2
<PAGE>
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:
L-1-3
<PAGE>
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Norwest Bank Minnesota,
National Association
3 New York Plaza, 15th Floor
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1
In accordance with Section 8.12(b) of the Pooling and Servicing Agreement,
dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor"), GE Capital Loan
Services, Inc., as master servicer, Banc One Mortgage Capital Markets, LLC, as
special servicer, and Norwest Bank Minnesota, National Association as trustee
(in such capacity, the "Trustee") and REMIC administrator, with respect to the
DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through Certificates,
Series 1999-CG1 (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 on the
Trustee's Internet Website pursuant to Section 4.02(a)] or [the
information identified on the schedule attached hereto pursuant to
Section 8.12(b)] of the Pooling and Servicing Agreement (the
"Information") for use in evaluating such possible investment.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of
L-2-1
<PAGE>
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 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.
L-2-2
<PAGE>
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:
L-2-3
<PAGE>
EXHIBIT M-1
FORM OF COLUMN MORTGAGE LOAN PURCHASE
AND SALE AGREEMENT
M-1-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of March 15, 1999
(this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser"), and Column Financial, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise convey
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (collectively, the "Mortgage Loans") identified and more
particularly described on Schedule 1 attached hereto (the "Mortgage Loan
Schedule"). Unless otherwise indicated on the Mortgage Loan Schedule, the
Mortgage Loans were originated by the Seller. With respect to those Mortgage
Loans, if any, identified on the Mortgage Loan Schedule as having been
originated by a party other than the Seller (any such other party, a "Third
Party Originator"; and any such Mortgage Loan, a "Third Party Mortgage Loan"),
the Seller is the beneficiary, either directly or by way of assignment, of
certain representations and warranties made by the Third Party Originator(s)
with respect to its (their) respective Third Party Mortgage Loan(s) pursuant to
the agreement(s) identified on Schedule 2 hereto (each agreement so identified,
a "Third Party Originator Agreement"). The Seller also intends to assign to the
Purchaser all of its right, title and interest in, to and under each Third Party
Originator Agreement, as and to the extent set forth in Section 2 below.
Reference is made to the Pooling and Servicing Agreement, dated as of March
1, 1999 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GE Capital Loan Services, Inc. as master servicer (the "Master
Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer (the
"Special Servicer"), and Norwest Bank Minnesota, N.A. as trustee (in such
capacity, the "Trustee") and as REMIC administrator (in such capacity, the
"REMIC Administrator"), relating to the issuance of the Purchaser's Commercial
Mortgage Pass-Through Certificates, Series 1999-CG1 (the "Certificates").
Capitalized terms used without definition herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement as in full
force and effect on the Closing Date (as defined below). The Seller acknowledges
that the Purchaser intends to transfer the Mortgage Loans, together with certain
other multifamily and commercial mortgage loans (the "Other Loans") to the
Trustee in exchange for the Certificates. The Purchaser has entered into an
Underwriting Agreement, dated the date hereof (the "Underwriting Agreement"),
with Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"), acting on
behalf of itself and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"; and, together with DLJSC, the "Underwriters"), pursuant to
which the Purchaser will sell to the Underwriters all of the Certificates that
are to be registered under the Securities Act of 1933, as amended (the
"Securities Act"; and such Certificates, the "Registered Certificates"). The
Purchaser has also entered into a Certificate Purchase Agreement, dated the date
hereof (the "Certificate Purchase Agreement"), with DLJSC, whereby the Purchaser
will sell to DLJSC all of the remaining Certificates (the "Non-Registered
Certificates").
<PAGE>
1. Agreement to Purchase. Subject to the terms and conditions set forth
herein, the Seller agrees to sell, assign, transfer, set over and otherwise
convey, and the Purchaser agrees to purchase, the Mortgage Loans. The purchase
and sale of the Mortgage Loans shall take place on March 19, 1999 or such other
date as shall be mutually acceptable to the parties hereto (the "Closing Date").
The Mortgage Loans will have an aggregate Cut-off Date Balance of approximately
$376,462,087 (the "Aggregate Cut-off Date Balance"). The purchase price for the
Mortgage Loans shall be equal to 100% of the Aggregate Cut-off Date Balance,
plus accrued interest thereon at the weighted average of the Mortgage Rates for
the Mortgage Loans from March 1, 1999 (the "Cut-off Date") to but not including
the Closing Date (net of related Master Servicing Fees and Trustee's Fees), and
such purchase price shall be paid to the Seller on the Closing Date by wire
transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all the Seller's right, title and interest in and to the Mortgage
Loans, including all interest and principal received on or with respect to the
Mortgage Loans after the Cutoff Date (other than scheduled payments of interest
and principal due on or before the Cut-off Date), together with all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies and any escrow, reserve or other comparable
accounts related to the Mortgage Loans, and all of the Seller's right, title and
interest in, to and under the Third Party Originator Agreements; provided,
however, that the Seller's rights under the Third Party Originator Agreements,
as assignee, and the rights the Seller is conveying hereunder, do not include
any rights of its assignor to indemnification under Section 4 of any such
agreement. On the Closing Date, the Seller shall transfer or cause to be
transferred to the Master Servicer the funds in such escrow, reserve or other
comparable accounts related to the Mortgage Loans, together with an amount equal
to all collections on the Mortgage Loans received prior to the Closing Date that
represent scheduled payments of principal and interest due and principal
prepayments received after the Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser hereby
directs the Seller to, and the Seller hereby agrees to, deliver to, and deposit
with, the Trustee (or a custodian appointed thereby (a "Custodian")) the
documents and/or instruments described on Exhibit A hereto with respect to each
Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage File"). In
addition, the Purchaser hereby directs the Seller to, and the Seller hereby
agrees to, deliver to, and deposit with, the Master Servicer all of the
documents and other items referred to in Section 2.01(f) of the Pooling and
Servicing Agreement with respect to the Mortgage Loans (collectively as to each
Mortgage Loan, the "Servicing File"), together with any and all unapplied
escrows and reserves in respect of the Mortgage Loans.
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If the Seller cannot deliver on the Closing Date any original or certified
recorded document or original policy of title insurance described on Exhibit A
solely because the Seller is delayed in making such delivery by reason of the
fact that such original or certified recorded document has not been returned by
the appropriate recording office or such original policy of title insurance has
not yet been issued, then the Seller shall notify the Purchaser, the Trustee
and, if applicable, the Custodian in writing of such delay and shall deliver
such documents to the Trustee or Custodian, as the case may be, promptly upon
the Seller's receipt thereof.
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser and its successors and assigns (including, without limitation,
the Trustee for the benefit of the Certificateholders), each of the
representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the Purchaser only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than the Purchaser
and the Underwriters) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), as of the
date of substitution, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Defective Mortgage Loan
(as defined in Section 4(a) hereof), whether by the Seller pursuant to Section
4(a) or by a Third Party Originator pursuant to the related Third Party
Originator Agreement, each of the representations and warranties set forth in
Exhibit B and Exhibit C (other than, in the case of a Replacement Mortgage Loan
substituted by a Third Party Originator, the representations and warranties set
forth in Paragraph (d) of Exhibit B and Paragraph 2 of Exhibit C). From and
after the date of substitution, each Replacement Mortgage Loan, if any, shall be
deemed to constitute a "Mortgage Loan" hereunder for all purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of the earlier of discovery or receipt of
notice by the Seller that there has been a breach of any of the representations
and warranties set forth in Exhibit B or Exhibit C and made by the Seller
pursuant to Section 3(a), Section 3(b) or Section 3(d), as the case may be,
which breach materially and adversely affects the value of any Mortgage Loan or
the interests of the legal and/or beneficial owner(s) thereof (any such breach,
a "Material Breach"), the
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Seller shall, subject to subsection (b) below, (i) cure such Material Breach in
all material respects or (ii) repurchase each affected Mortgage Loan (each, a
"Defective Mortgage Loan") at the related Purchase Price in accordance with the
directions of the owner(s) of such Defective Mortgage Loan(s); provided that if
(i) such Material Breach does not relate to whether the Defective Mortgage Loan
is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(a "Qualified Mortgage"), (ii) such Material Breach is capable of being cured
but not within such 90-day period, (iii) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach within such 90-day
period, and (iv) the Seller shall have delivered to the owner(s) of the
Defective Mortgage Loan a certification executed on behalf of the Seller by an
officer thereof setting forth the reason that such Material Breach is not
capable of being cured within the initial 90-day period and what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach will be cured within an additional
period not to exceed 90 more days, then the Seller (except with respect to Third
Party Mortgage Loans as provided in Section 4(b)) shall have up to an additional
90 days to complete such cure; and provided, further, that if the Seller's
obligation to repurchase any Defective Mortgage Loan as a result of a Material
Breach arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), the
Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan
(but, in any event, no later than such repurchase would have to have been
completed), (a) replace such Defective Mortgage Loan with one or more substitute
mortgage loans that individually and collectively satisfy the requirements of
the definition of "Qualifying Substitute Mortgage Loan" set forth in the Pooling
and Servicing Agreement, and (b) pay any corresponding Substitution Shortfall
Amount, such substitution and payment to be effected in accordance with the
terms of the Pooling and Servicing Agreement (or, if the Defective Mortgage Loan
is no longer subject thereto, in accordance with the reasonable instructions of
the owner(s) thereof). Any such repurchase or replacement of a Defective
Mortgage Loan shall be on a whole loan, servicing released basis.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(a), the Seller (i) shall deliver
the related Mortgage File for each such substitute mortgage loan to the owner(s)
of the Defective Mortgage Loan, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to such owner(s). No mortgage loan may be substituted for a Defective Mortgage
Loan as contemplated by this Section 4(a) if the Defective Mortgage Loan to be
replaced was itself a Replacement Mortgage Loan. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date and on or prior to the related date of
repurchase or substitution, shall belong to the Purchaser and its successors and
assigns. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or
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substitution, shall belong to the Seller (or, in the case of a Defective
Mortgage Loan that is repurchased or replaced by a Third Party Originator, to
such Third Party Originator).
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
Except as set forth in Section 8, it is understood and agreed that the
obligations of the Seller set forth in this Section 4(a) to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s),
constitute the sole remedies available to the Purchaser or any assignee
respecting a breach of the representations and warranties set forth on Exhibits
B and C and made by the Seller pursuant to Sections 3(a), 3(b) and 3(d),
respectively.
(b) It is hereby acknowledged that with respect to the Third Party Mortgage
Loans, if any, the rights of the Seller in respect of those certain
representations and warranties made by the Third Party Originators pursuant to
the Third Party Originator Agreements and assigned by the Seller to the
Purchaser pursuant hereto will, in turn, be assigned by the Purchaser to the
Trustee, as trustee under the Pooling and Servicing Agreement, for the benefit
of the Certificateholders. Accordingly, it is hereby agreed that if, in respect
of any such Third Party Mortgage Loan, there exists a breach of any of the
related Third Party Originator's representations and warranties for which such
Third Party Originator could be required to repurchase or (at its option, to the
extent of its substitution rights and subject to the Seller's right to approve
any Replacement Mortgage Loan delivered thereunder) replace such Third Party
Mortgage Loan, then notwithstanding that such Third Party Mortgage Loan may also
constitute a Defective Mortgage Loan for purposes of Section 4(a) by reason of a
Material Breach of any of the Seller's representations and warranties set forth
in Exhibits B and C made pursuant to Sections 3(a), 3(b) and 3(d), respectively,
the Seller shall be deemed not to have notice of such Material Breach (and,
correspondingly, not to be obligated to proceed with the cure of such Material
Breach or the repurchase of or substitution for such Third Party Mortgage Loan)
unless and until the related Third Party Originator shall have failed to cure
such Material Breach or repurchase or replace such Third Party Mortgage Loan
during the cure period for the breach of its representations and warranties set
forth in the related Third Party Originator Agreement; provided that this
sentence shall not apply in the event of a Material Breach that relates to
whether the Defective Mortgage Loan is a Qualified Mortgage; and, provided,
further, that, if, as a result of the failure of a Third Party Originator to
cure a Material Breach on the part of the Seller with respect to a Third Party
Mortgage Loan or repurchase or replace such Third Party Mortgage Loan during the
applicable cure period, the Seller is obligated to cure such Material Breach on
its part or repurchase or replace such Third Party Mortgage Loan, the Seller
shall be obligated to do so within 90 days following the end of the
cure/repurchase/substitution period for the related Third Party Originator and
the Seller shall not be entitled to the additional 90-day cure period that is
provided for in Section 4(a) with respect to Mortgage Loans that are not Third
Party Mortgage Loans. In addition, if the price at which any Third Party
Mortgage Loan is required to be repurchased by the related Third Party
Originator, or the additional cash amount to be paid together with the delivery
of one or more
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Replacement Mortgage Loans substituted by the related Third Party Originator for
any Third Party Mortgage Loan, in either case in connection with a breach of
such Third Party Originator's representations and warranties as contemplated
above, is less than the applicable Purchase Price or Substitution Shortfall
Amount, as the case may be, the Seller shall make-up the difference out of its
own funds (payment of such difference to be made in accordance with the
directions of the owner(s) of such Third Party Mortgage Loan at the time it is
repurchased or replaced by such Third Party Originator).
(c) It shall be a condition to any repurchase of or substitution for a
Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the Trustee
as assignee of the Purchaser shall have executed and delivered such instruments
of transfer or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller (i) the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Trustee under the Pooling and Servicing Agreement, and (ii) in the case of a
Third Party Mortgage Loan, the rights in respect of such Third Party Mortgage
Loan under the related Third Party Originator Agreement that were assigned to
the Trustee under the Pooling and Servicing Agreement.
(d) The Seller hereby acknowledges and consents to the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of (i) the representations and
warranties set forth in Exhibits B and C and made by the Seller pursuant to
Sections 3(a), 3(b) and 3(d), respectively, (ii) the obligation of the Seller to
repurchase or replace a Defective Mortgage Loan in connection with a Material
Breach pursuant to Section 4(a) and (iii) the obligation of the Seller to
deliver certain documentation, funds and other assets relating to the Mortgage
Loans pursuant to Section 2. The Trustee or its designee may enforce such
obligations as provided in Section 11(a) hereof or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time (or at such other place and time as
may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 3 of this Agreement shall be true and correct as of the
Closing Date;
(ii) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
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(iii) The Seller shall have delivered and released to the Trustee or a
Custodian and to the Master Servicer, respectively, all documents, funds
and other assets required to be delivered thereto pursuant to Section 2 of
this Agreement;
(iv) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(v) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of the following:
(i) This Agreement duly executed by the Purchaser and the Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the
Purchaser, the Underwriters, their affiliates, the Trustee and the
Certificateholders (collectively, for purposes of this Section 6, the
"Interested Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement and
(B) the certificate of incorporation and by-laws of the Seller;
(iii) A certificate of good standing of the Seller issued by the
Secretary of State of the State of Delaware not earlier than thirty (30)
days prior to the Closing Date, and upon which the Interested Parties may
rely;
(iv) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller and dated the
Closing Date, and upon which the Interested Parties may rely;
(v) A written opinion of Long Aldridge & Norman, counsel for the
Seller, substantially in the form of Exhibit D-3 hereto, with any
modifications required by any rating agency (each, a "Rating Agency")
identified in the Prospectus Supplement or the Memorandum (each as defined
in Section 8), dated the Closing Date and addressed to the Purchaser, the
Underwriters, the Trustee and, if requested thereby, each Rating Agency,
together with such other written opinions as may be required by any Rating
Agency; and
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(vi) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. The Seller shall pay all expenses incidental to the performance
of its obligations under this Agreement, including without limitation, any
recording fees or fees for title policy endorsements and continuations and fees
and expenses of its counsel.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (the Purchaser, the Underwriters, their
respective officers and directors and any such controlling persons,
collectively, for purposes of this Section 8, the "Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in (A) the
Prospectus Supplement (including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the Diskette), the Memorandum (including the Prospectus
Supplement as attached as Exhibit A thereto) or, insofar as they are required to
be filed as part of the Registration Statement pursuant to the No-Action
Letters, any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates, or in any revision or amendment of or supplement to any
of the foregoing or (B) any items similar to Computational Materials and/or ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates, or (ii) arise out of or are based upon the omission or alleged
omission to state in any of the printed materials described in the immediately
preceding clause (i) a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; but, in the case of clauses (i) and (ii), only
if and to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission (I) arises out of or is based upon an untrue
statement or omission with respect to the Mortgage Loans, the related Mortgagors
or the related Mortgaged Properties contained in the Master Tape (it being
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
including without limitation Exhibit A-1 and Exhibit A-2 thereto, the
Memorandum, the Diskette, the Computational Materials and ABS Term Sheets with
respect to the Registered Certificates and any items similar to Computational
Materials and ABS Term Sheets forwarded to prospective investors in the
Non-Registered Certificates), (II) is contained in the information regarding the
Mortgage Loans, the related Mortgagors, the related Mortgaged Properties or the
Seller set forth in the Prospectus Supplement and the Memorandum under the
headings "Summary of Prospectus Supplement--The Mortgage Loans and the Mortgaged
Properties", "Risk Factors" and "Description of the Mortgage Pool" or on Exhibit
A-1 to the Prospectus Supplement, or (III) arises out of or is based upon a
breach of the representations and warranties of the Seller set forth in or made
pursuant to Section 3 (such representations and warranties, together with the
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information described in the preceding clauses (I) and (II), the "Seller
Information"); provided that the indemnification provided by this Section 8
shall not apply to the extent that such untrue statement or omission was made as
a result of an error in (x) the manipulation of, or (y) any calculations based
upon, or (z) any aggregation (other than an aggregation made in the Master Tape
by the Seller) of, the information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Seller set forth in the
Master Tape, including without limitation the aggregation of such information
with comparable information relating to the Other Loans. The Seller acknowledges
that the Purchaser and the Underwriters will enter into the Underwriting
Agreement and the Purchaser and DLJSC will enter into the Certificate Purchase
Agreement in reliance upon this indemnity agreement of the Seller. This
indemnity agreement will be in addition to any liability which the Seller may
otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-59167 filed by the Purchaser on Form S-3,
including, without limitation, all exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 1,
1999, as supplemented by the prospectus supplement dated March 15, 1999 (the
"Prospectus Supplement"), relating to the Registered Certificates, including,
without limitation, all annexes and exhibits thereto; "Memorandum" shall mean
the private placement memorandum dated March 15, 1999, relating to certain
classes of the Non-Registered Certificates, including, without limitation, all
annexes and exhibits thereto; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated, and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder letters, the "No-Action Letters"); "Diskette"
shall mean the diskette attached to each of the Prospectus and the Memorandum;
and "Master Tape" shall mean the compilation of information and data regarding
the Mortgage Loans and the Other Loans covered by the Independent Accountants
Report on Applying Agreed Upon Procedures dated March 15, 1999, as supplemented
to the Closing Date, and rendered by Arthur Andersen LLP.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to subsection (a) above, the Indemnified Party shall promptly
notify the Seller in writing, and the Seller, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Seller may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
relating to such proceeding. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, and the reasonable fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Seller and such Indemnified Party shall have mutually agreed to the retention of
such counsel, (ii)
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the named parties to any such proceeding (including, without limitation, any
impleaded parties) include both the Seller and such Indemnified Party, and
representation of both such parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, or (iii) the Seller
shall have failed within a reasonable period to retain counsel reasonably
satisfactory to the Indemnified Party in accordance with the preceding sentence.
It is understood that the Seller shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the legal fees and
disbursements of more than one legal counsel for all the Indemnified Parties.
The Seller may, at its option, at any time upon written notice to the
Indemnified Party assume the defense of any proceeding and may designate counsel
satisfactory to the Indemnified Party in connection therewith provided that the
counsel so designated would have no actual or potential conflict of interest in
connection with such representation. Unless it shall assume the defense of any
proceeding, the Seller shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Seller agrees to indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. If the Seller assumes the defense of any proceeding, the
Seller shall be entitled to settle such proceeding with the consent of the
Indemnified Party in connection with all claims which have been asserted against
the Indemnified Party in such proceeding by the other parties to such
settlement, and the Seller shall be entitled to settle such proceeding without
the consent of the Indemnified Party, provided that the Indemnified Party
receives a full and unconditional release of all claims asserted against it in
such proceeding by the other parties to such settlement.
(c) If the indemnification provided for in Section 8(a) is unavailable to
an Indemnified Party or insufficient to hold it harmless in respect of any
losses, claims, damages or liabilities referred to therein, then the Seller
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the Seller and the Indemnified
Party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Indemnified Party and the Seller shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such parties.
(d) The parties hereto agree that it would not be just and equitable if
contribution pursuant to subsection (c) above were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in subsection (c) above. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities referred to above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim (except where the Indemnified Party is required to bear such
expenses pursuant to this Section 8), which expenses the Seller shall pay as and
when incurred, at the request of the Indemnified Party, and to the extent that
any expenses so paid by the Seller are subsequently determined to not be
required to be borne by the Seller hereunder, the
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Indemnified Party which received such payment shall promptly refund the amount
so paid to the Seller. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any of the Indemnified Parties, and (iii) acceptance of and payment for the
Mortgage Loans.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be sent by regular prepaid
U.S. Mail or prepaid reputable overnight courier or delivered by hand and
confirmed to it at 277 Park Avenue, 9th Floor, New York, New York 10172,
Attention: N. Dante LaRocca, or such other address as may be designated by the
Purchaser to the Seller in writing, or, if sent to the Seller, will be sent by
regular prepaid U.S. Mail or prepaid reliable overnight courier or delivered by
hand and confirmed to it at 3414 Peachtree Road, N.E., Suite 1140, Atlanta,
Georgia 30326-1113, Attention: President, or such other address as may be
designated by the Seller to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of the Certificates without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Section 11 hereof.
11. Third Party Beneficiaries.
(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4, and 12 (and, to the extent relevant
to the foregoing, in Sections 9, 10, 13, 14, 15, 16, 17 and 19) of this
Agreement. It is acknowledged that such representations, warranties and
covenants of the Seller may be enforced by the Trustee against the Seller, on
behalf of itself and the Certificateholders, to the same extent as if they were
parties hereto.
(b) Each Underwriter is an intended third party beneficiary of the
representations, warranties and covenants of the Seller set forth in Sections 5,
6 and 8 (and, to the extent relevant to the foregoing, in Sections 10, 13, 14,
15 and 16) of this Agreement. It is acknowledged and agreed
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<PAGE>
that such representations, warranties and covenants may be enforced by or on
behalf of an Underwriter against the Seller to the same extent as if it was a
party hereto.
(c) Each of the officers, directors and controlling persons of each of the
Purchaser and the Underwriters referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Seller set forth in Section 8 (and, to the extent relevant to
the foregoing, in Sections 10, 13, 14, 15 and 16) of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller to the same extent as if such person or entity was a party hereto.
12. Characterization. It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. Furthermore, it is not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to secure a debt or other obligation of the Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Seller then: (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of the Mortgage Loans in accordance with the terms thereof
(other than scheduled payments of interest and principal due on or before the
Cut-off Date) and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property; (c) the
assignments by the Purchaser to the Trustee of its interests in the Mortgage
Loans as contemplated by Section 4(d) hereof shall be deemed to be an assignment
of any security interest created hereunder; (d) the possession by the Purchaser
or any successor thereto of the related Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the Georgia
Uniform Commercial Code, the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser or any successor thereto for the purpose of perfecting such
security interest under applicable law. The Seller and the Purchaser shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement.
13. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall
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<PAGE>
remain operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Trustee), notwithstanding any restrictive or qualified endorsement or assignment
in respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be inef fective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be governed
by and construed in accordance with the substantive laws of the State of New
York, applicable to agreements made and to be performed entirely in said state.
The Seller hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives, to the fullest possible extent, the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
17. Successors and Assigns. The rights and obligations of the Seller under
this Agreement shall not be assigned by the Seller without the prior written
consent of the Purchaser, except that any person into which the Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Seller is a party, or any person succeeding to all
or substantially all of the business of the Seller, shall be the successor to
the Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as contemplated by Section 4(d) or as may
otherwise be required to effect the purposes of the Pooling and Servicing
Agreement, and the assignee shall, to the extent of such assignment, succeed to
the rights and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a
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<PAGE>
governmental agency or body or (iii) reasonably requested by the Purchaser for
use in a public or private disclosure document, shall verify the accuracy
thereof and shall remain liable therefor.
19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein to
the contrary, it is hereby acknowledged that certain groups of Mortgage Loans
identified on the Mortgage Loan Schedule as being cross-collateralized with each
other, are, in the case of each such particular group of Mortgage Loans (each, a
"Cross-Collateralized Group"), evidenced by a single mortgage note and secured
by mortgages, deeds of trust and/or deeds to secure debt on all the Mortgaged
Properties identified on the Mortgage Loan Schedule as corresponding to such
Cross-Collateralized Group. Each such Mortgage Loan actually represents a
portion of the entire indebtedness evidenced by the related mortgage note that
has been allocated to the Mortgaged Property identified on the Mortgage Loan
Schedule as corresponding to such Mortgage Loan. Each of the Mortgage Loans
constituting each such Cross-Collateralized Group shall be deemed to be a
separate Mortgage Loan that is (a) evidenced by a mortgage note identical to the
mortgage note that evidences such Cross-Collateralized Group (but in a principal
amount equal to the principal balance allocated to such Mortgage Loan) and (b)
cross-defaulted and cross-collateralized with each other Mortgage Loan in such
Cross-Collateralized Group. In addition, it is hereby acknowledged that certain
other groups of Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, also a "Cross-Collateralized Group"), by their
terms, cross-defaulted and cross-collateralized. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties set
forth in Exhibit C hereto and each of the capitalized terms used herein but
defined in the Pooling and Servicing Agreement, shall be interpreted in a manner
consistent with this Section 19. In addition, if there exists with respect to
any Cross-Collateralized Group only one original of any document referred to in
the definition of "Mortgage File" and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
COLUMN FINANCIAL, INC.
By:________________________________
Name:
Title:
DLJ COMMERCIAL MORTGAGE CORP.
By: _______________________________
Name:
Title:
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(a) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed "Pay to the order of
Norwest Bank Minnesota, National Association, as trustee for the registered
holders of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, without recourse";
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in clause (iv)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or a copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, in recordable form;
(v) an original executed assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, in recordable form;
(vi) originals or copies of any written assumption, modification, written
assurance and substitution agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been modified or the
Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title insurance;
<PAGE>
(viii) filed copies 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 Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC-2 or
UCC-3, as appropriate, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
1999-CG1;
(ix) any environmental indemnity agreement, power of attorney, guaranty,
property management agreement, Ground Lease, intercreditor agreement, cash
management agreement and lock-box agreement, relating to such Mortgage
Loan;
(x) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement agreements)
relating to, evidencing or constituting Additional Collateral; and
(xi) any insurance certificates relating to hazard insurance policies
maintained by the Borrower with respect to the related Mortgaged Property
(but only to the extent the Seller had possession of such insurance
certificates as of the Closing Date).
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<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and is possessed of all
licenses necessary to carry on its business and is qualified and in good
standing and in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan as contemplated by the terms of this Agreement and the Pooling and
Servicing Agreement.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not (i) violate
the Seller's organizational documents, (ii) violate any law or regulation or any
administrative decree or order to which the Seller is subject or (iii)
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 indenture,
agreement or other instrument to which the Seller is a party or by which it is
bound or which is applicable to it or any of its assets.
(c) The Seller has 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.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the
<PAGE>
enforceability of the provisions of this Agreement which purport to provide
indemnification from liabilities under applicable securities laws.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof 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 Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) No litigation is pending or, to the best of the Seller's knowledge,
threatened against the Seller which, if determined adversely to the Seller,
would prohibit the Seller from entering into this Agreement or, in the Seller's
good faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Seller to perform its obligations hereunder or the
financial condition of the Seller.
(h) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(i) The principal place of business and chief executive office of the
Seller is located in Atlanta, Georgia.
(j) The Seller is a wholly-owned subsidiary of DLJ Mortgage Capital, Inc.
(k) The Seller is a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing Act.
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<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is complete, true and correct in all
material respects as of the date of this Agreement and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to the
Purchaser of the Mortgage Loans, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage Loan to or at the direction of the Purchaser
and has validly and effectively conveyed (or caused to be conveyed) to the
Purchaser or its designee all of the Seller's legal and beneficial interest in
and to the Mortgage Loans free and clear of any and all pledges, liens, charges,
security interests and/or other encumbrances. The sale of the Mortgage Loans to
the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was thirty (30) days or more past
due, and no Mortgage Loan has been thirty (30) days or more delinquent in the
twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, none of which materially interferes
with the security intended to be provided by such Mortgage, the current use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy, none of which materially interferes with the
<PAGE>
security intended to be provided by such Mortgage, the current use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (d)
other matters to which like properties are commonly subject, none of which
materially interferes with the security intended to be provided by such
Mortgage, the use of the related Mortgaged Property or the current ability of
the related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group (the foregoing
items (a) through (e) being herein referred to as the "Permitted Encumbrances").
The related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, and such security interest is only subject to any prior purchase money
security interest in such personal property, any personal property leases
applicable to such personal property and any security interest in such personal
property granted in connection with another Mortgage Loan.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the related Mortgaged Property, and each assignor
thereunder has the full right to assign the same. The related assignment of such
Assignment of Leases executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases. To the Seller's
knowledge, no person owns any interest in any payments due under the related
leases that is superior to the lien created by such Assignment of Leases, if
any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related to a
Mortgage Loan has been satisfied, canceled, rescinded or subordinated in whole
or in material part, and the related Mortgaged Property has not been released
from the lien of such Mortgage, in whole or in material part, nor has any
instrument been executed that would effect any such satisfaction, cancellation,
subordination, rescission or release. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases related to a Mortgage Loan have been impaired,
waived, altered or modified in any respect, except by written instruments, all
of which are included in the related Mortgage File. No Mortgage Loan has been
modified in any manner such that the terms of such Mortgage Loan, as so
modified, are materially (and adversely to the owner thereof) different from the
terms of such Mortgage Loan described in the Prospectus.
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<PAGE>
7. Condition of Property; Condemnation. Each Mortgaged Property securing a
Mortgage Loan is, to the Seller's knowledge, based on its review of the most
recent inspection report (which, if prepared by a servicer of such Mortgage
Loan, was so prepared in accordance with the related servicing agreement), free
and clear of any damage that would materially and adversely affect its value as
security for such Mortgage Loan. The Seller has not received notice (and is not
otherwise aware) of any proceeding pending for the total or partial condemnation
of or affecting the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge, as of the date of the origination of each Mortgage Loan, all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to herein or
that do not materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been paid
exists which evidences that such Title Policy will be issued). Such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder (and the Seller has not received notice of any material claims
having been made or paid thereunder). No holder of the related Mortgage has
done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. The insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located, and such Title Policy contains no
exclusion for, or it affirmatively insures, (a) access to a public road, (b)
that there are no material encroachments of any part of the improvements on the
related Mortgaged Property over easements, which encroachments could reasonably
be expected to materially interfere with the use of the related Mortgaged
Property (unless the related Mortgaged Property is located in a jurisdiction
where such affirmative insurance is not available) and (c) that the area shown
on the survey conducted in connection with the origination of the related
Mortgage Loan is the same as the property legally described in the related
Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held back pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with respect to
the related Mortgaged Property), and there is no obligation for future
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<PAGE>
advances with respect thereto. Any and all requirements under each Mortgage Loan
as to completion of any on-site or off-site improvement and as to disbursements
of any funds escrowed for such purpose, which requirements were to have been
complied with on or before the Closing Date, have been complied with or any such
funds so escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in Paragraph 13 below) such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any Mortgage
Loan is a deed of trust, (a) a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage, and (b)
except in connection with a trustee's sale after default by the related
Mortgagor, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and either (x) no
such Environmental Report reveals any known circumstances or conditions with
respect to the related Mortgaged Property that rendered such Mortgaged Property,
at the date of such Environmental Report, in material violation of any
applicable environmental laws or (y) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then either (i) the expenditure of funds necessary to effect
such remediation is not material in relation to the outstanding principal
balance of the related Mortgage Loan, or (ii) a sufficient escrow of funds
exists for purposes of effecting such remediation, or (iii) the related
Mortgagor or other responsible party is currently taking such actions, if any,
with respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority,or (iv) the related Mortgaged
Property is insured under a policy of insurance, subject to certain per
occurrence and aggregate limits and a deductible, against certain losses arising
from such circumstances and conditions. To the Seller's knowledge, there are no
circumstances or conditions with respect to such Mortgaged Property not revealed
in such Environmental Report that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage encumbering each
Mortgaged Property requires the related Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Mortgagor with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may
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<PAGE>
be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and there is no valid defense, counterclaim or
right of offset or rescission available to the related Mortgagor with respect to
such Mortgage Note, Mortgage or other agreements.
14. Insurance. Except in certain cases, where tenants (having a net worth
of at least $50,000,000 or an investment grade credit rating) with the
obligation to maintain the insurance described in this paragraph are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured against loss by hazards
of extended coverage in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
replacement cost of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption insurance
policy providing coverage for at least six (6) months (or a specified dollar
amount which, in the reasonable judgement of the Seller, will cover no less than
six months of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the origination of such
Mortgage Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards, and flood insurance
was available, a flood insurance policy meeting any requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the outstanding principal balance of such Mortgage
Loan, (2) the full insurable value of such Mortgaged Property, and (3) the
maximum amount of insurance available under the National Flood Insurance Act of
1968, as amended. All such hazard and flood insurance policies contain a
standard "New York" mortgagee clause for the benefit of the holder of the
related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without ten (10) days' prior written notice to the mortgagee, and all premiums
payable thereon as of the Closing Date, whether annual or otherwise, have been
paid. Each Mortgaged Property securing a Mortgage Loan is also covered by
commercial general liability insurance in an amount at least equal to $1 million
per occurrence. No notice of termination, cancellation or reduction has been
received by the Seller with respect to any such hazard, flood or liability
insurance policy. Except under circumstances that would be reasonably acceptable
to a prudent commercial mortgage lender or that would not otherwise materially
and adversely affect the security intended to be provided by the related
Mortgage, the Mortgage for each Mortgage Loan provides that proceeds paid under
any such casualty insurance policy will (or, at the lender's option, will) be
applied either to the repair or restoration of the related Mortgaged Property or
to the payment of amounts due under such Mortgage Loan.
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan which are or may
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<PAGE>
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is, to the
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Local Law Compliance. To the Seller's knowledge, based on due diligence
customarily undertaken by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property securing a Mortgage Loan
comply with applicable zoning laws and ordinances, or constitute a legal
non-conforming use or structure or, if any such improvement does not so comply,
such non-compliance does not materially and adversely affect the value of the
related Mortgaged Property.
18. Leasehold Estate Only. If such Mortgage Loan is secured by the interest
of a Mortgagor as a lessee under a ground lease of all or a material portion of
a Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from the ground lessor, a
"Ground Lease"), but not by the related fee interest in such Mortgaged Property
or such material portion thereof (the "Fee Interest"):
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of written instruments which are a
part of the related Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances superior
to, or of equal priority with, the related Mortgage, other than the
related Fee Interest and Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) At the Closing Date, such Ground Lease is in full force and effect,
and the Seller has not received notice (nor is the Seller otherwise
aware) that any default has occurred under such Ground Lease;
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<PAGE>
(e) Such Ground Lease requires the lessor thereunder to give notice of any
default by the lessee to the mortgagee (provided that the mortgagee
has provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease), and such Ground Lease further
provides that no notice of termination given under such Ground Lease
is effective against the mortgagee unless a copy has been delivered to
the mortgagee in the manner described in such Ground Lease;
(f) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term which extends not
less than ten (10) years beyond the Stated Maturity Date of the
related Mortgage Loan or (ii) has an original term which does not end
prior to the third anniversary of the Stated Maturity Date of the
related Mortgage Loan and has extension options that, if exercised,
would cause the term of such Ground Lease to extend not less than ten
(10) years beyond the Stated Maturity Date of the related Mortgage
Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with a
mortgagee upon termination of such Ground Lease for any reason,
including rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds (other than in respect of a
total or substantially total loss or taking) will be applied either
(i) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(j) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property subject to
such Ground Lease for any
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<PAGE>
reason, or in any manner, which would materially adversely affect the security
provided by the related Mortgage.
Notwithstanding the foregoing, with respect to the Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as "Tierra Verde
Marine Center", to the extent that the submerged portion of the Mortgaged
Property may be considered a material portion of such Mortgaged Property
notwithstanding the relatively small area of such portion, (i) assignment and
subletting of the Ground Lease is prohibited and termination for cause is not
conditioned upon notice to the mortgagee; however, the applicable state
authority as Ground Lessor has agreed to provide default notices to mortgagee
and to enter into an identical lease with the mortgagee or a successor or assign
when such person (x) obtains title to the fee portion of the Mortgaged Property,
(y) establishes that fact to the satisfaction of such authority and (z) causes
compliance with the provisions of the original Ground Lease; (ii) the term of
the Ground Lease expires in 2018 (ten years after the Anticipated Repayment Date
and five years prior to the Stated Maturity Date); however, the applicable state
authority has executed a written statement that renewals of leases are handled
administratively and are routine if the lessee is in compliance with the terms
of the expiring Ground Lease; and (iii) the Ground Lease does not contain an
express non-disturbance clause; however, the Ground Lease by its terms entitle
the lessee exclusively to operate the leased premises.
19. Leasehold Estate and Fee Interest. If any Mortgage Loan is secured in
whole or in part by the interest of the related Mortgagor under a Ground Lease
and by the related Fee Interest:
(a) Such Fee Interest is subject, and subordinated of record, to the
related Mortgage; and the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage
or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related Mortgage
by the Mortgagor, the mortgagee has the right to foreclose upon or
otherwise exercise its rights with respect to such Fee Interest within
a period of time that would not have been viewed, as of the date of
origination, as commercially unreasonable by a prudent commercial
mortgage lender.
20. Escrow Deposits. With respect to escrow deposits and payments relating
to any Mortgage Loan, all such payments have been delivered to the Master
Servicer, and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
-8-
<PAGE>
22. Advancement of Funds. No holder of a Mortgage Loan has, to the Seller's
knowledge, advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
23. Equity Interest. No Mortgage Loan is automatically convertible into an
equity ownership interest in the related Mortgaged Property or the related
Mortgagor.
24. Legal Proceedings. To the Seller's knowledge, there are no pending or
threatened actions, suits or proceedings by or before any court or governmental
authority against or affecting the Mortgagor under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Mortgagor or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Mortgagor to pay principal, interest or
any other amounts due under such Mortgage Loan.
25. Junior Liens. Except as otherwise described under "Description of the
Mortgage Pool--Additional Mortgage Loan Information--Additional and Other
Financing" in the Prospectus Supplement, none of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written consent
of the holder thereof. To the Seller's knowledge, except as otherwise specified
under "Description of the Mortgage Pool--Additional Mortgage Loan
Information--Additional and Other Financing" in the Prospectus Supplement, and
except for cases involving other Mortgage Loans, the Mortgaged Properties are
not encumbered by any liens junior to the liens of the related Mortgages. Except
in cases involving other Mortgage Loans, the Mortgaged Properties are not
encumbered by any liens of equal priority with the liens of the related
Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan is free and clear of any and all mechanics'
and materialmen's liens that are not bonded or escrowed for or affirmatively
covered by title insurance, and (ii) no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage. The Seller has not received notice with respect to any
Mortgage Loan that any mechanics' and materialmen's liens have encumbered the
related Mortgaged Property since origination that have not been released, bonded
or escrowed for or affirmatively covered by titled insurance.
27. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
28. Licenses and Permits. To the Seller's knowledge, based on due diligence
customarily performed by commercially reasonable lenders in the origination of
comparable mortgage loans, as of the date of origination of each Mortgage Loan,
(i) the related Mortgagor was in possession of all material licenses, permits
and authorizations required by applicable law for the
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<PAGE>
ownership and operation of the related Mortgaged Property and (ii) all such
licenses, permits and authorizations were valid and in full force and effect.
29. Servicing Practices. The servicing and collection practices used with
respect to the Mortgage Loans have in all material respects been legal and met
customary standards utilized by prudent institutional commercial and multifamily
mortgage loan master servicers.
30. Cross-collateralization. No Mortgage Loan is cross-collateralized with
any loan other than one or more other Mortgage Loans.
31. Releases of Mortgaged Property. No Mortgage Note or Mortgage requires
the mortgagee to release all or any material portion of the related Mortgaged
Property from the lien of the related Mortgage except upon (i) payment in full
of all amounts due under the related Mortgage Loan or (ii) delivery of U.S.
Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or, in the case of a Cross-Collateralized Group, the release
of one or more related Mortgaged Properties upon (i) the satisfaction of certain
legal and underwriting requirements and (ii) the payment of a release price and
prepayment consideration in connection therewith; and provided, further, that,
as set forth under "Description of the Mortgage Pool--Certain Terms and
Conditions of the Mortgage Loans--Substitution" in the Prospectus Supplement,
certain Cross-Collateralized Groups of Mortgage Loans permit the related
Mortgagor to obtain the release of one or more of the related Mortgaged
Properties by substituting comparable real estate property, subject to, among
other conditions precedent, receipt of confirmation from each Rating Agency that
such release and substitution will not result in a qualification, downgrade or
withdrawal of any of its then-current ratings of the Certificates. Each Mortgage
loan that contains a provision for any defeasance of mortgage collateral permits
defeasance (i) no earlier than two years following the Closing Date, (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) and (iii) only for the purpose
of facilitating the disposition of mortgaged real property and not as part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
32. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
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<PAGE>
34. Inspection. In connection with the origination of each Mortgage Loan
(other than the Third Party Mortgage Loans), the Seller inspected, or caused the
inspection of, the related Mortgaged Property.
35. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in any of Paragraphs 3, 7, 12,
14, 15, 16, 17, 20, 24, 25, 26 and 28 of this Exhibit C.
36. Due-on-Sale. Such Mortgage contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in the
related Mortgagor, is directly or indirectly transferred or sold, subject,
however, to (a) a right to transfer interests in the related Mortgagor to
certain identified Persons or types of Person, in accordance with certain
provisions set forth in the Mortgage, and (b) a right of Mortgagor to transfer
such Mortgaged Property to (i) a third party if (A) each Rating Agency confirms
that such transfer will not result in a qualification, downgrade or withdrawal
of any of its then-current ratings of the Certificates, or (B) such third party
is reasonably acceptable to the mortgagee (and the mortgagee is entitled to make
its determination of the acceptability of such third party on the basis of,
among other things, such third party's experience and financial strength) and/or
(ii) certain affiliates of such Mortgagor.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan that,
individually or together with the Mortgage Loans of affiliated Mortgagors,
represented an aggregate Cut-off Date Balance of $25,000,000 or more, was, as of
the origination of the Mortgage Loan, a Single Purpose Entity. For this purpose,
a "Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
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<PAGE>
38. Delivery of Mortgage File. The Seller has delivered to the Trustee or a
Custodian appointed thereby, with respect to each Mortgage Loan, in accordance
with Section 2 of this Agreement, a complete Mortgage File.
39. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
40. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming that it is not otherwise in default,
the rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
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<PAGE>
Exhibit D-1
Certificate of an Officer of the Seller
CERTIFICATE OF ASSISTANT SECRETARY OF COLUMN FINANCIAL, INC.
I, Marjorie S. White, hereby certify that I am a duly appointed Assistant
Secretary of Column Financial, Inc., a Delaware Corporation ("Column"), and
further certify as follows:
1. Attached hereto as Attachment A are true and correct copies of the
Articles of Incorporation and By-Laws of Column, which are in full force and
effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of Column authorizing and approving Column's execution, delivery and
performance of the Mortgage Loan Purchase and Sale Agreement, dated as of March
15, 1999 (the "Mortgage Loan Purchase and Sale Agreement"), between DLJ
Commercial Mortgage Corp. as purchaser and Column as seller.
3. Attached hereto as Attachment C is a certificate of good standing of
Column issued by the Secretary of State of the State of Delaware issued within
thirty (30) days of the date hereof and no event (including, without limitation,
any act or omission on the part of Column) has occurred since the date thereof
which has affected the good standing of Column under the laws of the State of
Delaware.
4. Each person who, as an officer or representative of Column,
signed the Mortgage Loan Purchase and Sale Agreement or any other document or
certificate delivered by or on behalf of Column prior hereto or on the date
hereof in connection with the transactions contemplated in the Mortgage Loan
Purchase and Sale Agreement, was, at the respective times of such signing and
delivery, and is as of the date hereof, duly elected or appointed, qualified and
acting as such officer or representative, and the signature of such persons
appearing on such documents are their genuine signatures.
5. No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of Column are pending or contemplated.
6. There are no actions, suits or proceedings pending or, to the best of my
knowledge, threatened against or affecting Column which, individually or in the
aggregate, if adversely determined, would materially and adversely affect
Column's ability to perform its obligations under the Mortgage Loan Purchase and
Sale Agreement.
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase and Sale Agreement.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March ___, 1999.
By:________________________________
Name: Marjorie S. White
Title: Assistant Secretary
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<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
Certificate of Column Financial, Inc.
In connection with the execution and delivery by Column Financial, Inc.
("Column") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase and Sale Agreement (the "Agreement"), dated
as of March 15, 1999, between DLJ Commercial Mortgage Corp., as purchaser, and
Column, as seller, the undersigned hereby certifies that (i) the representations
and warranties of Column in the Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, (ii) Column has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof, and (iii)
Column has reviewed and approved the information set forth in the Prospectus
Supplement under the captions "Summary of the Prospectus Supplement--The
Mortgage Loans and the Mortgaged Properties", "Risk Factors--Risks Related to
the Mortgage Loans" and "Description of the Mortgage Pool", in the Memorandum
under the caption "Description of the Mortgage Pool" and elsewhere in the
Prospectus Supplement and the Memorandum with respect to the subjects discussed
under such captions in each, as well as the information set forth on Exhibits
A-1 and A-2 to the Prospectus Supplement, and such information did not, as of
the date of the Prospectus Supplement and the Memorandum, and does not, as of
the date hereof, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (provided
that Column makes no certification as to whether such information included or
includes any untrue statement of a material fact with respect to the Third Party
Originators and/or the Third Party Mortgage Loans or omitted or omits to state a
material fact with respect thereto). Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Agreement.
Certified this ____ day of March, 1999.
COLUMN FINANCIAL, INC.
By:________________________________
Name:
Title:
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<PAGE>
Exhibit D-3
Opinion of Counsel to the Seller
<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
Schedule 2
Third Party Originator Agreements
THIRD PARTY ORIGINATOR THIRD PARTY ORIGINATOR AGREEMENT
1. Union Capital Investments, LLC Seller's Warranty Certificate dated as of
("Union Capital") March 15, 1999 from Union Capital in
favor of DLJ Mortgage Capital, Inc.
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<PAGE>
EXHIBIT M-2
FORM OF GECA MORTGAGE LOANS PURCHASE
AND SALE AGREEMENT
M-2-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of March 15, 1999
(this "Agreement"), is between DLJ Commercial Mortgage Corp., a Delaware
corporation (the "Purchaser"), and GE Capital Access, Inc., a Delaware
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise convey
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (collectively, the "Mortgage Loans") identified and more
particularly described on Schedule 1 attached hereto (the "Mortgage Loan
Schedule"). Unless otherwise indicated on the Mortgage Loan Schedule, the
Mortgage Loans were originated by the Seller.
Reference is made to the Pooling and Servicing Agreement, dated as of March
1, 1999 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GE Capital Loan Services, Inc., as master servicer (in such capacity,
the "Master Servicer"), Banc One Mortgage Capital Markets, LLC, as special
servicer (in such capacity, the "Special Servicer"), and Norwest Bank Minnesota,
National Association as trustee (in such capacity, the "Trustee") and as REMIC
administrator (in such capacity, the "REMIC Administrator"), relating to the
issuance of the Purchaser's Commercial Mortgage Pass-Through Certificates,
Series 1999-CG1 (the "Certificates"). Capitalized terms used without definition
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
below). The Seller acknowledges that the Purchaser intends to transfer the
Mortgage Loans, together with certain other commercial and multifamily mortgage
loans (the "Other Loans"), to the Trustee in exchange for the Certificates. The
Purchaser has entered into an Underwriting Agreement, dated the date hereof (the
"Underwriting Agreement"), with Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJSC"), acting on behalf of itself and Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"; and, together with DLJSC, the
"Underwriters"), whereby the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (the "Securities Act"; and such Certificates, the "Registered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated the date hereof (the "Certificate Purchase Agreement"), with
DLJSC, whereby the Purchaser will sell to DLJSC all of the remaining
Certificates (the "Non-Registered Certificates").
1. Agreement to Purchase. The Seller agrees to sell, assign, transfer, set
over and otherwise convey, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on March 19,
1999 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The Mortgage Loans will have an aggregate Cut-off Date
Balance of approximately $863,255,474.37 (the "Initial Pool Balance"). The
purchase price for the Mortgage Loans shall be determined in accordance with the
letter agreement between the Purchaser and the Seller including accrued interest
thereon from March 1, 1999 (the "Cut-off Date") to but not including the Closing
Date. Such purchase price
<PAGE>
shall be paid to the Seller on the Closing Date by wire transfer in immediately
available funds or by such other method as shall be mutually acceptable to the
parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all the Seller's right, title and interest in and to the Mortgage
Loans, including all interest and principal received on or with respect to the
Mortgage Loans after the Cut-off Date (other than scheduled payments of interest
and principal due on or before the Cut-off Date), together with all of the
Seller's right, title and interest in and to the proceeds of any related title,
hazard or other insurance policies and any escrow, reserve or other comparable
accounts related to the Mortgage Loans (including letters of credit representing
reserves or escrows). On the Closing Date, the Seller shall transfer or cause to
be transferred to the Master Servicer the funds in such escrow, reserve or other
comparable accounts related to the Mortgage Loans, together with an amount equal
to all collections on the Mortgage Loans received prior to the Closing Date that
represent scheduled payments of principal and interest due and principal
prepayments received after the Cut-off Date.
(b) In connection with such transfer and assignment, the Purchaser hereby
directs the Seller to, and the Seller hereby agrees to, deliver to, and deposit
with, the Trustee (or a custodian appointed thereby (a "Custodian")) the
documents and/or instruments described on Exhibit A hereto with respect to each
Mortgage Loan (collectively as to each Mortgage Loan, the "Mortgage File"). The
Seller shall also cause (at its own expense) any letter of credit delivered by a
Mortgagor and included in the Mortgage File to be transferred to and for the
benefit of the Trustee, including changing the beneficiary thereof, as
necessary. In addition, the Purchaser hereby directs the Seller to, and the
Seller hereby agrees to, deliver to, and deposit with, the Master Servicer all
of the documents and other items referred to in Section 2.01(f) of the Pooling
and Servicing Agreement with respect to the Mortgage Loans (collectively as to
each Mortgage Loan, the "Servicing File"), together with any and all unapplied
escrows and reserves in respect of the Mortgage Loans.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document or original title insurance policy described on Exhibit A,
solely because the Seller is delayed in making such delivery by reason of the
fact that such original or certified recorded document has not been returned by
the appropriate recording office or such original title insurance policy has not
yet been issued, then the Seller shall notify the Trustee and, if applicable,
the Custodian in writing of such delay and shall deliver such documents to the
Trustee or Custodian, as the case may be, promptly upon the Seller's receipt
thereof. In any event, if the Seller fails to deliver any original or certified
recorded document described on Exhibit A or any original title policy described
on Exhibit A to the Trustee or Custodian within 180 days following the Closing
Date, such failure shall be deemed to constitute a breach of the representation
set forth in Item 38 of Exhibit C hereto with respect to the related Mortgage
Loan.
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<PAGE>
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser and its successors and assigns (including, without limitation,
the Trustee for the benefit of the Certificateholders), each of the
representations and warranties set forth in Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser and its successors and assigns (including,
without limitation, the Trustee for the benefit of the Certificateholders), each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the Purchaser only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than the Purchaser
and the Underwriters) who may be entitled to any commission or compensation
payable by the Purchaser or the Underwriters in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser and its successors and assigns (including, without
limitation, the Trustee for the benefit of the Certificateholders), as of the
date of substitution, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Defective Mortgage Loan
(as defined in Section 4(a) hereof), each of the representations and warranties
set forth in Exhibit B and Exhibit C. From and after the date of substitution,
each Replacement Mortgage Loan, if any, shall be deemed to constitute a
"Mortgage Loan" hereunder for all purposes.
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of receipt of notice by the Seller that there
has been a breach of any of the representations and warranties set forth in
Exhibit B or Exhibit C and made by the Seller pursuant to Section 3(a), Section
3(b) or Section 3(d), as the case may be, which breach materially and adversely
affects the value of any Mortgage Loan or the interests of the legal and/or
beneficial owner(s) thereof (any such breach, a "Material Breach"), the Seller
shall (i) cure such Material Breach in all material respects or (ii) repurchase
each affected Mortgage Loan (each, a "Defective Mortgage Loan") at the related
Purchase Price (as defined in the Pooling and Servicing Agreement, but without
giving effect to any amendment thereto unless approved in writing by Seller) in
accordance with the directions of the owner(s) of such Defective Mortgage
Loan(s); provided that if (i) such Material Breach does not relate to whether
the Defective Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material
Breach is capable of being cured but not within such 90-day period, (iii) the
Seller has commenced and is diligently proceeding with the cure of such Material
Breach within such 90-day period, and (iv) the Seller shall have delivered to
the owner(s) of the Defective Mortgage Loan a certification executed on behalf
of the Seller by an officer thereof setting forth the reason that such Material
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof
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and stating that the Seller anticipates that such Material Breach will be cured
within an additional period not to exceed 90 more days, then the Seller shall
have up to an additional 90 days to complete such cure, in which event the
Seller shall continue to proceed diligently to effect such cure as early as
practicable within such 90-day period; and provided, further, that if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach arises within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing such
Defective Mortgage Loan (but, in any event, no later than such repurchase would
have to have been completed), (x) replace such Defective Mortgage Loan with one
or more substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (y) pay any corresponding
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement (or, if the
Defective Mortgage Loan is no longer subject thereto, in accordance with the
reasonable instructions of the owner(s) thereof). Any such repurchase or
replacement of a Defective Mortgage Loan shall be on a whole loan, servicing
released basis. The Seller shall have no obligation to monitor the Mortgage
Loans regarding the existence of a Material Breach, but if Seller discovers a
Material Breach with respect to a Mortgage Loan, it will notify Purchaser.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(a), the Seller (i) shall deliver
the related Mortgage File for each such substitute mortgage loan to the owner(s)
of the Defective Mortgage Loan, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to such owner(s). No mortgage loan may be substituted for a Defective Mortgage
Loan as contemplated by this Section 4(a) if the Defective Mortgage Loan to be
replaced was itself a Replacement Mortgage Loan. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date and on or prior to the related date of
repurchase or substitution, shall belong to the Purchaser and its successors and
assigns. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or substitution, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the owner(s) of such Defective Mortgage
Loan.
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Except as contemplated by Section 8, it is understood and agreed that the
obligations of the Seller set forth in this Section 4(a) to cure a Material
Breach or repurchase or replace the related Defective Mortgage Loan(s)
constitute the sole remedies available to the Purchaser or any assignee
respecting a breach of the representations and warranties set forth on Exhibits
B and C and made by the Seller pursuant to Sections 3(a), 3(b) and 3(d),
respectively.
(b) It shall be a condition to any repurchase of or substitution for a
Defective Mortgage Loan by the Seller pursuant to Section 4(a) that the Trustee
as assignee of the Purchaser shall have executed and delivered such instruments
of transfer or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto), to the extent that such ownership interest was transferred to the
Trustee under the Pooling and Servicing Agreement.
(c) The Seller hereby acknowledges and consents to the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of (i) the representations and
warranties set forth in Exhibits B and C and made by the Seller pursuant to
Sections 3(a), 3(b) and 3(d), respectively, (ii) the obligation of the Seller to
repurchase or replace a Defective Mortgage Loan in connection with a Material
Breach pursuant to Section 4(a) and (iii) the obligation of the Seller to
deliver certain documentation, funds and other assets relating to the Mortgage
Loans pursuant to Section 2. The Trustee or its designee may enforce such
obligations as provided in Section 11(a) hereof or as assignee.
5. Closing. The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley & Austin, 875 Third Avenue, New York, New
York 10022 at 10:00 a.m., New York City time (or at such other place and time as
may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller made
pursuant to Section 3 of this Agreement shall be true and correct as of the
Closing Date;
(ii) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee or a
Custodian and to the Master Servicer, respectively, all documents, funds
and other assets required to be delivered thereto pursuant to Section 2 of
this Agreement;
(iv) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall
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have the ability to comply with all terms and conditions and perform all
duties and obligations required to be complied with or performed after the
Closing Date; and
(v) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
6. Closing Documents. The Closing Documents shall consist of the following:
(i) This Agreement duly executed by the Purchaser and the Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the
Purchaser, the Underwriters, their affiliates, the Trustee and the
Certificateholders (collectively, for purposes of this Section 6, the
"Interested Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement and
(B) the certificate of incorporation and by-laws of the Seller;
(iii) A certificate of good standing of the Seller issued by the
Secretary of State of the State of Delaware not earlier than thirty (30)
days prior to the Closing Date, and upon which the Interested Parties may
rely;
(iv) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto; executed by an authorized signatory of the Seller and dated the
Closing Date, and upon which the Interested Parties may rely;
(v) Written opinions of Kevin Korsh, Esq., in-house counsel for the
Seller and GECC (as defined below) and Andrews & Kurth L.L.P., counsel for
the Seller and GECC, substantially in the forms of Exhibit D-3A and Exhibit
D-3B hereto with any modifications required by any rating agency (each, a
"Rating Agency") identified in the Prospectus Supplement or the Memorandum
(each as defined in Section 8), dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Trustee and, if requested thereby, each
Rating Agency, together with such other written opinions as may be required
by any Rating Agency, including a written opinion of Cadwalader, Wickersham
and Taft, counsel for the Seller and GECC with respect to the
characterization of the transfer of the Mortgage Loans by the Seller to the
Purchaser as a "true sale"; and
(vi) A written letter of Cadwalader, Wickersham & Taft, counsel for
the Seller, and Andrews & Kurth LLP, counsel for the Seller, each in form
and substance acceptable to the Purchaser and the Underwriters, dated the
Closing Date and addressed to the
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Purchaser and the Underwriters relating to the Prospectus Supplement and
the Memorandum;
(vii) A letter or letters obtained by the Purchaser and the Seller,
among others, from Arthur Andersen LLP, certified public accountants, dated
the dates of the Prospectus Supplement and the Memorandum, to the effect
that they have performed certain specified procedures as a result of which
they have determined that certain information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement and the
Memorandum under the captions "Summary of Prospectus Supplement -- The
Mortgage Loans and the Mortgaged Properties," "Description of the Mortgage
Pool" and "Risk Factors -- Risks Related to the Mortgage Loans", Exhibit
A-1 to the Prospectus Supplement and the Diskette (as defined below) agrees
with the records of the Seller; and
(viii) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. The Seller shall pay all expenses incidental to the performance
of its obligations under this Agreement, including without limitation, any
recording fees or fees for title policy endorsements and continuations and fees
and expenses of its counsel, provided that Seller and Purchaser shall share
certain costs and expenses as outlined in a separate terms sheet.
The Seller shall pay all out-of-pocket costs and expenses of the Purchaser
(including the Trust and its representatives as assignee thereof) reasonably
incurred in connection with the enforcement of any rights or remedies of the
Purchaser or the Trust provided for by this Agreement, including the performance
of all of the Seller's obligations hereunder: (a) in defending or protecting the
Purchaser's right, title and interest in the Mortgage Loans, including, without
limitation, the security interests and liens granted hereunder in the event that
the sale hereunder is deemed to constitute a loan secured by all or part of the
Mortgage Loans, or in defending or protecting the priority of any thereof; and
(b) in the enforcement, or attempted enforcement, of this Agreement, or in the
collection or attempted collection of any obligation of the Seller hereunder;
provided, however, that if the Seller is the prevailing party in any such
enforcement action against Seller, then Seller shall not be obligated to pay any
of the foregoing costs or expenses of Purchaser, and, unless such action was
commenced by the Trust, the Purchaser shall be obligated to pay such costs and
expenses incurred by Seller.
8. Indemnification.
(a) The Seller shall indemnify and hold harmless each of the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other similar
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages
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<PAGE>
or liabilities (or actions in respect thereof) (i) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement (including Exhibit A-1 and Exhibit
A-2 thereto and the Diskette) or the Memorandum (including the Prospectus
Supplement as attached as Exhibit A thereto) or, insofar as they are required to
be filed as part of the Registration Statement pursuant to the No-Action
Letters, any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates, or in any revision or amendment of or supplement to any
of the foregoing or (B) any items similar to Computational Materials or ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates, or
(ii) arise out of or are based upon the omission or alleged omission to state in
the printed materials described in (i)(A) and (B) a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; but, in the case of
clauses (i) and (ii), only if and to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission (I) arises out of or is
based upon an untrue statement or omission with respect to the Mortgage Loans,
the related Mortgagors or the related Mortgaged Properties contained in the
Master Tape (it being acknowledged that the Master Tape was used to prepare the
Prospectus Supplement including without limitation Exhibit A-1 and Exhibit A-2
thereto, the Memorandum, the Diskette, the Computations Materials and ABS Term
Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) is contained in the information
regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged
Properties or the Seller set forth in the Prospectus Supplement and the
Memorandum under the headings "Summary of Prospectus Supplement -- The Mortgage
Loans and the Mortgaged Properties", "Risk Factors" and "Description of the
Mortgage Pool" or on Exhibit A-1 to the Prospectus Supplement; provided that the
foregoing were provided to the Seller for its review, or (III) arises out of or
is based upon a breach of the representations and warranties of the Seller set
forth in or made pursuant to Section 3 (such representations and warranties,
together with the information described in the preceding clauses (I) and (II),
the "Seller Information"); provided that the indemnification provided by this
Section 8 shall not apply to the extent that such untrue statement or omission
was made as a result of an error in (x) the manipulation of, or (y) any
calculations based upon, or (z) any aggregation (other than an aggregation made
in the Master Tape by the Seller) of, the information regarding the Mortgage
Loans, the related Mortgagors, the related Mortgaged Properties or the Seller
set forth in the Master Tape, including without limitation the aggregation of
such information with comparable information relating to the Other Loans. The
Seller acknowledges that the Purchaser and the Underwriters will enter into the
Underwriting Agreement and the Certificate Purchase Agreement in reliance upon
this indemnity agreement of Seller. This indemnity agreement will be in addition
to any liability which the Seller may otherwise have. The obligation to
indemnify does not include or incorporate herein the cure or repurchase
obligations of Seller in Section 4.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-59167 filed by the Purchaser on Form S-3,
including, without limitation, all exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated March 1,
1999, as supplemented by the prospectus supplement dated March 15, 1999 (the
"Prospectus Supplement"), relating to the Registered Certificates, including,
without
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limitation, all annexes and exhibits thereto; "Memorandum" shall mean the
private placement memorandum dated March 15, 1999, relating to certain classes
of the Non-Registered Certificates, including, without limitation, all annexes
and exhibits thereto; "Computational Materials" shall have the meaning assigned
thereto in the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Securities and Exchange Commission (the "Commission")
to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated,
and Kidder Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder Letters"); "ABS Term
Sheets" shall have the meaning assigned thereto in the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter" and, together
with the Kidder letters, the "No-Action Letters"); "Diskette" shall mean the
diskette attached to each of the Prospectus and the Memorandum; and "Master
Tape" shall mean the compilation of information and data regarding the Mortgage
Loans covered by the Independent Accountants Report on Applying Agreed Upon
Procedures dated March 15, 1999, as supplemented to the Closing Date, and
rendered by Arthur Anderson LLP.
(b) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) (i) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus (including the Prospectus Supplement, Exhibits
A-1 and A-2 thereto and the Diskette), the Memorandum (including the Prospectus
Supplement as attached as Exhibit A thereto), or, insofar as they are required
to be filed as part of the Registration Statement pursuant to the No-Action
Letters, any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates or in any revision or amendment of or supplement to any
of the foregoing, or (B) any items similar to Computational Materials or ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates, or (ii) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made, not misleading, except to the extent such untrue
statement, alleged untrue statement, omission or alleged omission is contained
in, arises out of or is based upon the Seller Information. This indemnity will
be in addition to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 8, except to the extent that the indemnifying party has been
prejudiced in any material
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respect, or from any liability which it may have, otherwise than under this
Section 8. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party or parties shall
have reasonably concluded that there may be legal defenses available to it or
them and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for legal or other expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or parties in connection
with all claims which have been asserted against the indemnified party or
parties in such proceeding by the other parties to such settlement, and shall be
entitled to settle such proceeding without the consent of the indemnified party
or parties (provided that the indemnified party or parties receive a full and
unconditional release of all claims asserted against it in such proceeding by
the other parties to such settlement).
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 8, then the Seller and the Purchaser shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above, in such
proportion as is appropriate to reflect the relative fault of the Seller on the
one hand and the Purchaser on the other in connection with the statement or
omission that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
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alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Seller or the
Purchaser and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by per capita allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to above shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim which is the subject of this subsection (d), subject to the limitations
therein provided under subsection (c). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any of the indemnified parties, and (iii) acceptance of and payment for the
Mortgage Loans.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be sent by regular prepaid
U.S. Mail or prepaid reputable overnight courier or delivered by hand and
confirmed to it at 277 Park Avenue, 9th Floor, New York, New York 10172,
Attention: N. Dante LaRocca, or such other address as may be designated by the
Purchaser to the Seller in writing, or, if sent to the Seller, will be sent by
regular prepaid U.S. Mail or prepaid reliable overnight courier or delivered by
hand and confirmed to it at 292 Long Ridge Rd., Stamford, Connecticut 06927,
Attention: Kathy A. Cassidy, fax no. 203/357-6364, or such other address as may
be designated by the Seller to the Purchaser in writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of the Certificates without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
in Section 11 hereof.
11. Third Party Beneficiaries.
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(a) The Trustee and the Certificateholders are intended third party
beneficiaries of the representations, warranties and covenants made by the
Seller in Sections 2, 3(a), 3(b), 3(d), 4 and 12 (and, to the extent relevant to
the foregoing, in Sections 10, 12, 13, 14, 15, 16 and 19 and the second
paragraph of Section 7 and the first sentence of Section 17) of this Agreement.
It is acknowledged that such representations, warranties and covenants of the
Seller may be enforced by the Trustee against the Seller, on behalf of itself
and the Certificateholders, to the same extent as if they were parties hereto.
(b) Each Undewriter is an intended third party beneficiary of the
representations, warranties and covenants of the Seller set forth in Sections 5,
6, and 8 and the covenants of GECC set forth in Section 20 (and, to the extent
relevant to the foregoing, in Sections 10, 13, 14, 15 and 16 and the second
paragraph of Section 7) of this Agreement. It is acknowledged and agreed that
such representations, warranties and covenants may be enforced by or on behalf
of an Underwriter against the Seller and, with respect to Section 20, GECC to
the same extent as if it was a party hereto.
(c) Each of the officers, directors, employees, agents, controlling persons
and affiliates of the Purchaser referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Seller set forth in Section 8 and the covenants of GECC set
forth in Section 20 (and, to the extent relevant to the foregoing, in Sections
10, 13, 14, 15 and 16 and the second paragraph of Section 7) of this Agreement.
It is acknowledged and agreed that such representations, warranties, covenants
and indemnities may be enforced by or on behalf of any such person or entity
against the Seller and, with respect to Section 20, GECC to the same extent as
if such person or entity was a party hereto.
(d) Each of the officers, directors, employees, agents, controlling persons
and affiliates of the Seller referred to in Section 8 hereof is an intended
third party beneficiary of the representations, warranties, covenants and
indemnities of the Purchaser set forth in Section 8 and the covenants of DLJSC
set forth in Section 20 (and, to the extent relevant to the foregoing, in
Sections 10, 13, 14, 15 and 16) of this Agreement. It is acknowledged and agreed
that such representations, warranties, covenants and indemnities may be enforced
by or on behalf of any such person or entity against the Purchaser and, with
respect to Section 20, DLJSC to the same extent as if such person or entity was
a party hereto.
12. Characterization. It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. Furthermore, it is not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to secure a debt or other obligation of the Seller.
13. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by
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<PAGE>
the Seller to the Purchaser (and by the Purchaser to the Trustee),
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any provision
hereof.
15. Governing Law; Consent to Jurisdiction. This Agreement will be governed
by and construed in accordance with the substantive laws of the State of New
York, applicable to agreements made and to be performed entirely in said state.
The Seller hereby irrevocably (i) submits to the jurisdiction of any federal
courts sitting in New York City with respect to matters arising out of or
relating to this Agreement (or, if federal jurisdiction does not apply, then New
York State courts); (ii) agrees that all claims with respect to such action or
proceeding may be heard and determined in such courts; (iii) waives, to the
fullest possible extent, the defense of an inconvenient forum; and (iv) agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
16. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
17. Successors and Assigns. The rights and obligations of the Seller under
this Agreement shall not be assigned by the Seller without the prior written
consent of the Purchaser, except that any person into which the Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Seller is a party, or any person succeeding to all
or substantially all of the business of the Seller, shall be the successor to
the Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement (other than Sections 8 and 20), in whole or in part, as
contemplated by Section 4(c) or as may otherwise be required to effect the
purposes of the Pooling and Servicing Agreement, and the assignee shall, to the
extent of such assignment, succeed to the rights and obligations hereunder of
the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating
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<PAGE>
Agency or a governmental agency or body or (iii) reasonably requested by the
Purchaser for use in a public or private disclosure document, and shall verify
the accuracy thereof.
19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein to
the contrary, it is hereby acknowledged that certain groups of Mortgage Loans
identified on the Mortgage Loan Schedule as being cross-collateralized with each
other, are, in the case of each such particular group of Mortgage Loans (each, a
"Cross-Collateralized Group"), evidenced by a single mortgage note and secured
by mortgages, deeds of trust and/or deeds to secure debt on all the Mortgaged
Properties identified on the Mortgage Loan Schedule as corresponding to such
Cross-Collateralized Group. Each such Mortgage Loan actually represents a
portion of the entire indebtedness evidenced by the related mortgage note that
has been allocated to the Mortgaged Property identified on the Mortgage Loan
Schedule as corresponding to such Mortgage Loan. Each of the Mortgage Loans
constituting each such Cross-Collateralized Group shall be deemed to be a
separate Mortgage Loan that is (a) evidenced by a mortgage note identical to the
mortgage note that evidences such Cross-Collateralized Group (but in a principal
amount equal to the principal balance allocated to such Mortgage Loan) and (b)
cross-defaulted and cross-collateralized with each other Mortgage Loan in such
Cross-Collateralized Group. In addition, it is hereby acknowledged that certain
other groups of Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, also a "Cross-Collateralized Group"), by their
terms, cross- defaulted and cross-collateralized. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties set
forth in Exhibit C hereto and each of the capitalized terms used herein but
defined in the Pooling and Servicing Agreement, shall be interpreted in a manner
consistent with this Section 19. In addition, if there exists with respect to
any Cross-Collateralized Group only one original of any document referred to in
the definition of "Mortgage File" and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
20. Joinder. By its execution of this Agreement, General Electric Capital
Corporation ("GECC") agrees for the benefit of the persons or entities
identified in Section 8(a) to be jointly and severally liable for any and all
covenants and obligations of the Seller under Section 8 (and not any other
Section) of this Agreement. By its execution of this Agreement, DLJSC agrees for
the benefit of the persons or entities identified in Section 8(b) to be jointly
and severally liable for any and all covenants and obligations of the Purchaser
under Section 8 (and not any other Section) of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
GE CAPITAL ACCESS, INC.
By:_______________________________
Name:
Title: Authorized Signatory
DLJ COMMERCIAL MORTGAGE CORP.
By: _______________________________
Name:
Title:
SOLELY FOR PURPOSES OF SECTION 20
(AND SECTION 8) OF THIS AGREEMENT:
GENERAL ELECTRIC CAPITAL CORPORATION
By:_______________________________
Name:
Title: Authorized Signatory
SOLELY FOR PURPOSES OF SECTION 20
(AND SECTION 8) OF THIS AGREEMENT:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: _______________________________
Name:
Title:
<PAGE>
Exhibit A
Certain Documents to be Delivered by the Seller
with Respect to the Mortgage Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(a) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed (without recourse) to the
order of Norwest Bank Minnesota, National Association, as trustee for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 1999-CG1;
(ii) an original or copy of the Mortgage and of any intervening assignments
thereof that precede the assignment referred to in clause (iv) below, in
each case (unless such document has not yet been returned from the
applicable recording office) with evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such item
is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment of the Mortgage, in favor of Norwest
Bank Minnesota, National Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, in recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of Norwest Bank
Minnesota, National Association, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-CG1, in recordable form;
(vi) originals or copies of any written assumption, modification, written
assurance and substitution agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been modified or the
Mortgage Loan has been assumed;
(vii) the original or a copy of the policy of lender's title insurance
issued on the date of the origination of such Mortgage Loan (provided, if
such policy has not yet been issued, a pro forma policy or an irrevocable,
binding commitment to issue such title insurance policy shall be delivered
pending receipt of the final policy from the title insurer);
<PAGE>
(viii) filed copies 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 Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC-2 or
UCC-3, as appropriate, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
1999-CG1;
(ix) any environmental indemnity agreement, power of attorney, property
management agreement, ground lease, intercreditor agreement, cash
management agreement and lock-box agreement relating to such Mortgage Loan;
(x) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement agreements)
relating to Additional Collateral;
(xi) insurance certificates relating to hazard insurance policies
maintained by the Mortgagor with respect to the related Mortgaged Property;
and
(xii) any other documents identified in the Pooling and Servicing Agreement
as constituting part of the Mortgage File.
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<PAGE>
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a Delaware corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business, is
duly qualified as a foreign corporation in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the ability of the Seller to perform its
obligations hereunder, and the Seller has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement by it,
and has the corporate power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this Agreement;
(b) This Agreement has been duly authorized, executed and delivered by the
Seller and assuming its due authorization, execution and delivery by the
Purchaser, will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
or by public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(c) The execution and delivery of this Agreement by the Seller and the
performance of its obligations hereunder (1) will not conflict with any
provision of any law or regulation to which the Seller is subject, or conflict
with, result in a breach of or constitute a default under any of the terms,
conditions or provisions of any of the Seller's organizational documents or any
agreement or instrument to which the Seller is a party or by which it is bound,
or any order or decree applicable to the Seller, or result in the creation or
imposition of any lien on any of the Seller's assets or property, in each case
which would materially and adversely affect the ability of the Seller to carry
out the transactions contemplated by this Agreement; and (2) does not require
the consent of any third party or such consent has been obtained;
<PAGE>
(d) There is no action, suit, proceeding or investigation pending or, to
the knowledge of the Seller, threatened against the Seller in any court or by or
before any other governmental agency or instrumentality which, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
validity of this Agreement or the ability of the Seller to enter into, and carry
out the transactions contemplated by, this Agreement;
(e) The Seller is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that, in the Seller's
good faith and reasonable judgment, would materially and adversely affect the
condition (financial or otherwise) or operations of the Seller or its properties
or might have consequences that would materially and adversely affect its
performance hereunder;
(f) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by the Seller
with this Agreement or the consummation of the transactions contemplated by this
Agreement, other than those which have been obtained by the Seller;
(g) The Seller is a wholly-owned subsidiary of General Electric Capital
Corporation.
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<PAGE>
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is complete, true and correct in all
material respects as of the date of this Agreement and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer to the
Purchaser of the Mortgage Loans, the Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to the Purchaser or its designee all of the Seller's legal and
beneficial interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The sale
of the Mortgage Loans to the Purchaser or its designee does not require the
Seller to obtain any governmental or regulatory approval or consent that has not
been obtained.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was thirty (30) days or more past
due, and no Mortgage Loan has been thirty (30) days or more delinquent in the
twelve-month period immediately preceding the Closing Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, none of which materially interferes
with the security intended to be provided by such Mortgage, the current use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan,
<PAGE>
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy, none of which materially interferes with the security intended
to be provided by such Mortgage, the current use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan, (d) other matters to
which like properties are commonly subject, none of which materially interferes
with the security intended to be provided by such Mortgage, the use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, and
(e) if such Mortgage Loan is a Cross-Collateralized Mortgage Loan, the lien of
the Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group (the foregoing items (a) through (e) being herein
referred to as the "Permitted Encumbrances"). The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
and, subject to the exceptions set forth in Paragraph 13 below, constitutes a
legal, valid and binding assignment, sufficient to convey to the assignee named
therein all of the assignor's right, title and interest in, to and under such
Mortgage. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent instruments, establishes and creates a valid and,
subject to the exceptions set forth in Paragraph 13 below, enforceable security
interest in favor of the holder thereof in all of the related Mortgagor's
personal property used in, and reasonably necessary to operate, the related
Mortgaged Property. A Uniform Commercial Code financing statement has been filed
and/or recorded in all places necessary to perfect a valid security interest in
such personal property, and such security interest is only subject to any prior
purchase money security interest in such personal property, any personal
property leases applicable to such personal property and any security interest
in such personal property granted in connection with another Mortgage Loan.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the related Mortgaged Property, and each assignor
thereunder has the full right to assign the same. The related assignment of such
Assignment of Leases executed and delivered in favor of the Trustee is in
recordable form and, subject to the exceptions set forth in Paragraph 13 below,
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. To the Seller's knowledge, no person owns
any interest in any payments due under the related leases that is superior to
the lien created by such Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related to a
Mortgage Loan has been satisfied, canceled, rescinded or subordinated in whole
or in material part, and the related Mortgaged Property has not been released
from the lien of such Mortgage, in whole or in material part, nor has any
instrument been executed that would effect any such satisfaction, cancellation,
subordination, rescission or release. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases related to a Mortgage Loan have been impaired,
waived,
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<PAGE>
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File. No Mortgage Loan has been modified in
any manner such that the terms of such Mortgage Loan, as so modified, are
materially (and adversely to the owner thereof) different from the terms of such
Mortgage Loan described in the Prospectus.
7. Condition of Property; Condemnation. Each Mortgaged Property securing a
Mortgage Loan is, to the Seller's knowledge, based on its review of the most
recent inspection report (which, if prepared by a servicer of such Mortgage
Loan, was so prepared in accordance with the related servicing agreement), free
and clear of any damage that would materially and adversely affect its value as
security for such Mortgage Loan. The Seller has not received notice (and is not
otherwise aware) of any proceeding pending for the total or partial condemnation
of or affecting the Mortgaged Property securing any Mortgage Loan. To the
Seller's knowledge, as of the date of the origination of each Mortgage Loan, all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been paid
exists which evidences that such Title Policy will be issued). Such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder (and the Seller has not received notice of any material claims
having been made or paid thereunder). No holder of the related Mortgage has
done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. The insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located, and with respect to at least a majority
of the Mortgage Loans (by outstanding principal balance as of the Cut-off Date)
the insurer is a nationally recognized insurer. Such Title Policy contains no
exclusion for, or it affirmatively insures, (a) access to a public road, (b)
that there are no material encroachments of any part of the improvements on the
related Mortgaged Property over easements, which encroachments could reasonably
be expected to materially interfere with the use of the related Mortgaged
Property (unless the related Mortgaged Property is located in a jurisdiction
where such affirmative insurance is not available) and (c) that the area shown
on the
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<PAGE>
survey conducted in connection with the origination of the related Mortgage Loan
is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held back pending the satisfaction of
certain leasing or other economic criteria with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
Any and all requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose, which requirements were to have been complied with on or
before the Closing Date, have been complied with or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in Paragraph 13 below) such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage in respect of any Mortgage
Loan is a deed of trust, (a) a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage, and (b)
except in connection with a trustee's sale after default by the related
Mortgagor, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and either (x) no
such Environmental Report reveals any known circumstances or conditions with
respect to the related Mortgaged Property that rendered such Mortgaged Property,
at the date of such Environmental Report, in material violation of any
applicable environmental laws or (y) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then either (i) the expenditure of funds necessary to effect
such remediation is not material in relation to the outstanding principal
balance of the related Mortgage Loan and such remediation would not materially
and adversely affect the value of the Mortgaged Property, or (ii) a sufficient
escrow of funds exists for purposes of effecting such remediation, or (iii) the
related Mortgagor or other responsible party is currently taking such actions,
if any, with respect to such circumstances or conditions as have been required
by the applicable governmental regulatory authority. To the Seller's knowledge,
there are no circumstances or conditions with respect to such Mortgaged Property
not revealed in such Environmental Report that render such Mortgaged Property in
material violation of any applicable environmental laws. The Mortgage
encumbering such Mortgaged Property requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and regulations.
-4-
<PAGE>
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Mortgagor with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
and each assignment of Mortgage and assignment of Assignment of Leases executed
by the Seller is the legal valid and binding obligation of the Seller, and each
such Mortgage Note, Mortgage and other agreement and each such assignment of
Mortgage and assignment of Assignment of Leases is enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
there is no valid defense, counterclaim or right of offset or rescission
available to the related Mortgagor with respect to such Mortgage Note, Mortgage
or other agreements.
14. Insurance. All improvements upon each Mortgaged Property securing a
Mortgage Loan are insured against loss by hazards of extended coverage in an
amount at least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full replacement cost of the improvements located
on the related Mortgaged Property, and if applicable, the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. Each Mortgaged Property securing a Mortgage Loan is the subject of
a business interruption insurance policy providing coverage for at least six (6)
months. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Flood Emergency Management Agency
as having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable value of such Mortgaged Property, and (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
All such hazard and flood insurance policies contain a standard "New York"
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without prior written notice to the
mortgagee, and all premiums payable thereon as of the Closing Date, whether
annual or otherwise, have been paid. Each Mortgaged Property securing a Mortgage
Loan is also covered by commercial general liability insurance in an amount at
least equal to $1 million per occurrence. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee to
require insurance as described above. No notice of termination, cancellation or
reduction has been received by the Seller with respect to any such hazard, flood
or liability insurance policy. The Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan,
except to the extent that (i) the Mortgage entitles the Mortgagor to any portion
of such proceeds remaining after the repair or restoration
-5-
<PAGE>
of the Mortgaged Property and payment of amounts due under the Mortgage Loan,
and (ii) the Mortgagor's interest in the Mortgaged Property is a leasehold
interest (in which case, the provisions of the Mortgage Loan documents relating
to the application of the proceeds of casualty insurance policies are as
described in Item 18(i)).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan which are or may become a lien of priority
equal to or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
16. Mortgagor Bankruptcy. Except as described on Schedule C-1, no Mortgagor
under a Mortgage Loan is, to the Seller's knowledge, a debtor in any state or
federal bankruptcy or insolvency proceeding.
17. Local Law Compliance. To the best of the Seller's knowledge based on
due diligence customarily undertaken by prudent institutional mortgage lenders,
the improvements located on or forming part of each Mortgaged Property securing
a Mortgage Loan comply with applicable zoning laws and ordinances, or constitute
a legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property.
18. Leasehold Estate Only. If "Leasehold" is set forth opposite the name of
the related Mortgaged Property on the Mortgage Loan Schedule, such Mortgage Loan
is secured by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (with respect to Representations 18 and
19, the term "Ground Lease" shall mean such ground lease, all written amendments
and modifications, and any related estoppels or agreements from the ground
lessor), but not by the related fee interest in such Mortgaged Property (the
"Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of written instruments which are a
part of the related Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances superior
to, or of equal priority with, the related Mortgage, other than the
related Fee Interest and Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the
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<PAGE>
consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, (except as described
on Schedule C-1) in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon notice
to, but without the need to obtain the consent of, such lessor;
(d) At the date of origination, such Ground Lease was in full force and
effect, and the Seller has not received notice (nor is the Seller
otherwise aware) that any default has occurred under such Ground
Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of any
default by the lessee to the mortgagee (provided that the mortgagee
has provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease), and such Ground Lease, or an
estoppel letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground Lease
is effective against the mortgagee unless a copy has been delivered to
the mortgagee in the manner described in such Ground Lease;
(f) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term which extends not less than ten
(10) years beyond the Stated Maturity Date of the related Mortgage
Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with a
mortgagee upon termination of such Ground Lease for any reason,
including rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds (other than in respect of a
total or substantially total loss or taking) will be applied either
(i) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
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<PAGE>
(j) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property subject to
such Ground Lease for any reason, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage.
19. Leasehold Estate and Fee Interest. If "Fee/Leasehold" is set forth
opposite the name of the of the related Mortgaged Property on the Mortgage Loan
Schedule, such Mortgage Loan is secured in whole or in part by the interest of
the related Mortgagor under a Ground Lease and by the related Fee Interest and:
(a) Such Fee Interest is subject, and subordinated of record, to the
related Mortgage; and the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage
or other lien upon such Fee Interest; and
(b) Upon occurrence of a default under the terms of the related Mortgage
by the Mortgagor, the mortgagee has the right to foreclose upon or
otherwise exercise its rights with respect to such Fee Interest within
a period of time that would not have been viewed, as of the date of
origination, as commercially unreasonable by a prudent commercial
mortgage lender.
20. Escrow Deposits. With respect to escrow deposits and payments relating
to any Mortgage Loan, all such payments have been delivered to the Master
Servicer, and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
22. Advancement of Funds. No holder of a Mortgage Loan has, to the Seller's
knowledge, advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
23. Equity Interest. No Mortgage Loan is automatically convertible into an
equity ownership interest in the related Mortgaged Property or the related
Mortgagor.
24. Legal Proceedings. To the Seller's knowledge, there are no pending or
threatened actions, suits or proceedings by or before any court or governmental
authority against or affecting the Mortgagor under any Mortgage Loan or the
related Mortgaged Property that, if
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<PAGE>
determined adversely to such Mortgagor or Mortgaged Property, would materially
and adversely affect the value of the Mortgaged Property or the ability of the
Mortgagor to pay principal, interest or any other amounts due under such
Mortgage Loan.
25. Junior Liens. Except as otherwise described on Schedule C-1, none of
the Mortgage Loans permits the related Mortgaged Property to be encumbered by
any lien junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof. To the Seller's
knowledge, based on a review of the related Title Policy, except as otherwise
specified on Schedule C-1 or in the Prospectus Supplement, and except for cases
involving other Mortgage Loans, the Mortgaged Properties are not encumbered by
any liens junior to the liens of the related Mortgages. In each of the cases
described on Schedule C-1, where a Mortgaged Property securing a Mortgage Loan
is further encumbered by a junior lien, the loan secured by such junior lien is
subject to a subordination and standstill agreement that subordinates such loan
and prohibits the related junior creditor from pursuing any remedies for default
or causing any bankruptcy proceeding while such Mortgage Loan is outstanding.
Except in cases involving other Mortgage Loans, the Mortgaged Properties are not
encumbered by any liens of equal priority with the liens of the related
Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan is free and clear of any and all mechanics'
and materialmen's liens that are not bonded or escrowed for, and (ii) no rights
are outstanding that under law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage. The Seller has not received
notice with respect to any Mortgage Loan that any mechanics' and materialmen's
liens have encumbered the related Mortgaged Property since origination that have
not been released, bonded or escrowed for.
27. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
28. Licenses and Permits. To the Seller's knowledge, based on due diligence
customarily performed by commercially reasonable lenders in the origination of
comparable mortgage loans, as of the date of origination of each Mortgage Loan,
(i) the related Mortgagor (or operator of the Mortgaged Property) had all
material licenses, permits and authorizations required by applicable law for the
ownership and operation of the related Mortgaged Property and (ii) all such
licenses, permits and authorizations were valid and in full force and effect.
29. Servicing Practices. The servicing and collection practices used with
respect to the Mortgage Loans have in all material respects been legal and met
customary standards utilized by prudent institutional commercial and multifamily
mortgage loan master servicers.
30. Cross-collateralization. No Mortgage Loan is cross-collateralized with
any loan other than one or more other Mortgage Loans.
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<PAGE>
31. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any portion of the related Mortgaged Property from the lien of the related
Mortgage except upon (i) payment in full of all amounts due under the related
Mortgage Loan, (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan or (iii) in certain instances, the
substitution of a qualifying replacement mortgaged property. The
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or, in the case of a
Cross-Collateralized Group, the release of one or more related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and (b) the payment of a release price or delivery of U.S. Treasury
securities as defeasance collateral in connection therewith.
32. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
34. Inspection. In connection with the origination of each Mortgage Loan,
the Seller inspected, or caused the inspection of, the related Mortgaged
Property.
35. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in any of Paragraphs 3, 7, 12,
14, 15, 16, 17, 20, 24, 25, 26 and 28 of this Exhibit C.
36. Due-on-Sale. Subject to a one-time (or, in the case of certain Mortgage
Loans, a multiple-time) transfer right allowed in accordance with certain
provisions set forth in the Mortgage securing each Mortgage Loan, such Mortgage
contains a "due-on-sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
prior written consent of the holder, the Mortgaged Property subject to such
Mortgage, or any interest therein, is transferred or sold.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan that,
individually or together with the Mortgage Loans of affiliated Mortgagors,
represented 5% or more of the Initial Pool Balance, was, as of the origination
of the Mortgage Loan, a Single
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<PAGE>
Purpose Entity. For this purpose, a "Single Purpose Entity" shall mean an
entity, other than an individual, whose organizational documents provide
substantially to the effect that it was formed or organized solely for the
purpose of owning and operating one or more of the Mortgaged Properties securing
the Mortgage Loans and prohibit it from engaging in any business unrelated to
such Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets other
than those related to its interest in and operation of such Mortgaged Property
or Properties, or any indebtedness other than as permitted by the related
Mortgage(s) or the other related Mortgage Loan documents, that it has its own
books and records and accounts separate and apart from any other person, and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Delivery of Mortgage File. The Seller has delivered to the Trustee or a
Custodian appointed thereby, with respect to each Mortgage Loan, in accordance
with Section 2 of this Agreement, a complete Mortgage File.
39. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
40. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If either of the Swerdlow or Winston Mortgage
Loans is not paid in full by its Anticipated Repayment Date, and assuming that
it is not otherwise in default, the rate at which such ARD Loan accrues interest
will increase by two percentage points over the original Mortgage Rate.
41. No Waivers. The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note, except by a written instrument contained in the Mortgage File.
42. Originator Authorized. To the extent required under applicable law as
of the Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it held the Mortgage Loan to the extent necessary to ensure
the enforceability of such Mortgage Loan.
43. Defeasance Provision. Any Mortgage Loan which contains a provision for
any defeasance of mortgage collateral either (A) requires the consent of the
holder of the Mortgage Loan to any defeasance or (B) permits defeasance (i) no
earlier than two years following the Closing Date, (ii) only with substitute
collateral constituting "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) and (iii) only to facilitate the
disposition of mortgage real property and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
44. Tax Parcels. Except as described on Schedule C-1, each Mortgaged
Property constitutes one or more complete separate tax lots or is subject to an
endorsement under
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<PAGE>
the related Title Policy or in a few instances application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
45. Monthly Payment. Each Mortgage Loan has a Monthly Payment due on April
1, 1999, which is required to include interest for an entire month (as
determined on a 30/360 basis or an actual/360 basis, whichever basis applies
under the terms of such Mortgage Loan).
46. Fee Interest. If "Fee" is set forth opposite the name of the related
Mortgaged Property on the Mortgage Loan Schedule, the interest of the related
Mortgagor in such Mortgaged Property is a fee simple interest in real property.
47. Collateral. The Mortgage Note is not secured by any collateral that is
not conveyed pursuant to this Agreement.
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Schedule C-1
GECA Mortgage Loan Exceptions
(References are to Numbered Representations in Mortgage Loan Purchase Agreement)
REP NO.
18. Leasehold Estate Only
(c) Lessor's Consent Not Required for Assignment of Lender's Interest
o Days Inn- Myrtle Beach ($2,400,000) (76-0000503): Ground
lessor's consent deemed given for assignees with 5 years
hotel experience and holder of license from nationally
recognized hotel franchise, otherwise, consent not
unreasonably withheld
(j) No Commercially Unreasonable Restrictions on Subletting; Covenant
of Quiet Enjoyment
o Dallas Design District ($17,500,000) (76-0000758): 2 of 20
properties comprising collateral (1700 Oak Lawn; 1621 Oak
Lawn) involve leasehold mortgages; no express covenant of
quiet enjoyment in either ground lease (although no express
limitation either)
o Days Inn- Myrtle Beach ($2,400,000) (76-0000503): No express
covenant of quiet enjoyment (although no express limitation
either)
24. Legal Proceedings
o Lamplighter MHP ($16,000,000) (76-0000451): Rent control
violation-related lawsuit by City of San Jose (affects approx 17
units on the mortgaged property); borrower, joinder parties, and
other joinder party- controlled entities owning other MHPs are
named defendants; borrower has previously been single asset
entity
25. Junior Liens
o Friendship Crossing Apartments ($4,611,000) (76-0000567):
$900,000 secured sub debt to District of Columbia Dept of Housing
and Community Development; subject to subordination/standstill
agreement
<PAGE>
o Centennial Creek Office Park ($2,500,000) (76-0000633): $114,000
secured sub debt to L. Robert Bauers (GP of limited partnership
acting as Borrower's GP); subject to subordination/standstill
agreement
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<PAGE>
Exhibit D-2
Certificate of the Seller
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
Certificate of GE Capital Access, Inc.
In connection with the execution and delivery by GE Capital Access, Inc.
("GECA") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase and Sale Agreement, dated as of March __,
1999 (the "Agreement"), between DLJ Commercial Mortgage Corp., as purchaser, and
GECA, as seller, the undersigned hereby certifies that (i) the representations
and warranties of GECA in the Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) GECA has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof.
Certified this ____ day of March, 1999.
GE CAPITAL ACCESS, INC.
By:
Name:
Title:
<PAGE>
Exhibit D-3A
Opinion of In-House Counsel to the Seller
Based upon and subject to the foregoing, it is my opinion that:
1. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as
presently conducted by it, to own the GECA Mortgage Loans, to sell the
GECA Mortgage Loans to the Depositor and to enter into and perform its
obligations under the Mortgage Loan Purchase Agreement.
2. GECC is a corporation validly existing and in good standing under the
laws of the State of New York and has the requisite corporate power to
enter into and perform its obligations under the Mortgage Loan
Purchase Agreement.
3. The Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by the Seller and GECC.
4. No consent, approval, authorization or order of any State of New York
or federal court or governmental agency or body is required for the
consummation by the Seller of the transaction contemplated by the
Mortgage Loan Purchase Agreement except for those consents, approvals,
authorizations or orders that previously have been obtained.
5. Neither the sale of the GECA Mortgage Loans as provided in the
Mortgage Loan Purchase Agreement, nor the fulfillment of the terms or
the consummation of any other of the transactions contemplated by the
Mortgage Loan Purchase Agreement, will result in a breach of the
certificate of incorporation or by-laws of the Seller or, to my
knowledge, will conflict with, result in a breach, violation or
acceleration of or constitute a default under, any indenture or other
agreement or instrument to which the Seller is a party or by which it
is bound, or any State of New York or federal statute applicable to
the Seller, or any order or regulation of any State of New York or
federal court, regulatory body, administrative agency or other
governmental body having jurisdiction over the Seller.
6. To my knowledge, there are no actions, proceedings or investigations
pending or threatened against the Seller before any State of New York
or State of Delaware or federal court, administrative agency or other
tribunal (a) asserting the invalidity of the Mortgage Loan Purchase
Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated in the Mortgage Loan Purchase Agreement or
(c) that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of,
the Mortgage Loan Purchase Agreement.
<PAGE>
Exhibit D-3B
Opinion of Counsel to the Seller
Based upon and subject to the foregoing, it is our opinion that the
Mortgage Loan Purchase Agreement constitutes the legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance with the
terms of the Mortgage Loan Purchase Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except to the extent rights to indemnity
and contribution may be limited by applicable law.
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<PAGE>
Schedule 1
Mortgage Loan Schedule
<PAGE>
EXHIBIT N
FORM OF UNION CAPITAL AGREEMENT
N-1
<PAGE>
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of March 15, 1999 (this
"Seller's Warranty Certificate"), is executed and delivered by Union Capital
Investments, LLC (the "Seller"), in favor of DLJ Mortgage Capital, Inc.
("DLJMC"), its successors and assigns.
PRELIMINARY STATEMENT
The Seller and DLJMC are parties to a Master Mortgage Loan Purchase
Agreement dated as of January 23, 1996 and amended as of February 22, 1998 and
as of December 31, 1998 (the "Master Purchase Agreement"). The mortgage loan or,
if more than one, the mortgage loans (in either case, the "Mortgage Loans")
identified on the Mortgage Loan Schedule attached as Schedule 1 hereto have been
previously sold by the Seller to DLJMC pursuant to the Master Agreement. DLJMC
intends to transfer the Mortgage Loans to Column Financial, Inc. ("Column")
pursuant to a Bill of Sale (the "DLJMC-Column Agreement"); Column in turn
intends to transfer the Mortgage Loans to DLJ Commercial Mortgage Corp. (the
"Depositor") pursuant to a Mortgage Loan Purchase and Sale Agreement (the
"Column - Depositor Agreement"); and the Depositor in turn intends to deposit
the Mortgage Loans into a trust fund to be evidenced by the Depositor's
Commercial Mortgage Pass-Through Certificates, Series 1999-CG1 (the
"Certificates"). The Certificates will be issued on or about [March ___, 1999]
(the actual date of issuance, the "Closing Date") pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated on or
about March 1, 1999, among the Depositor, GE Capital Loan Services, Inc., as
master servicer (in such capacity the "Master Servicer"), Banc One Mortgage
Capital Markets, LLC, as special servicer (in such capacity the "Special
Servicer"), and Norwest Bank Minnesota, National Association, as trustee (in
such capacity, the "Trustee") and REMIC administrator (in such capacity, the
"REMIC Administrator"). The Seller agreed in the Master Purchase Agreement to
make certain representations and warranties, repurchase certain Mortgage Loans
and provide certain indemnification in connection with any sale of the Mortgage
Loans to a trust fund to be formed as part of a mortgage pass-through
transaction, and such agreement was partial consideration for the execution and
performance of the Master Purchase Agreement by DLJMC. Capitalized terms used
but not defined herein shall have the respective meanings assigned to such terms
in the Master Purchase Agreement or, if not defined in the Master Purchase
Agreement, shall have the respective meanings assigned to such terms in the
Pooling and Servicing Agreement.
Pursuant to the terms of the DLJMC - Column Agreement, DLJMC shall assign
to Column all of DLJMC's right, title and interest in and to the Mortgage Loans
and under this Seller's Warranty Certificate (except under Section 4 hereof);
pursuant to the Column - Depositor Agreement, Column shall assign to the
Depositor, among other things, all of Column's right, title and interest in and
to the Mortgage Loans and, to the extent assigned to it under the DLJMC - Column
Agreement, under this Seller's Warranty Certificate; and pursuant to the Pooling
and Servicing Agreement, the Depositor shall assign to the Trustee, for the
benefit of the holders of the Certificates (the "Certificateholders"), among
other things, all of the Depositor's right, title and interest in and to the
<PAGE>
Mortgage Loans and, to the extent assigned to it under the Column - Depositor
Agreement, under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it shall
deliver to the Trustee as assignee of the Depositor (or, if so directed by
DLJMC, to a custodian appointed by the Trustee (a "Custodian")), under the
Pooling and Servicing Agreement, all of the documents required in the Mortgage
Files, at the times and in the manner otherwise required by the Pooling and
Servicing Agreement, in each case to the extent the Seller has not delivered
such documents to DLJMC prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Section 7.01 of the Master Purchase Agreement, the Seller hereby represents and
warrants as of the Closing Date to and for the benefit of DLJMC, Column, the
Depositor, their affiliates, the Trustee and the Certificateholders that (a)
each of the representations and warranties set forth in Sections 4.01 and 4.02
of the Master Purchase Agreement is true and correct as if stated and made on
the Closing Date and (b) each Mortgage Loan bears interest at a rate that
remains fixed throughout the term of such Mortgage Loan. The Seller agrees that
it shall be deemed to make as of the date of substitution with respect to any
Replacement Mortgage Loan (as defined in the Pooling and Servicing Agreement)
that is substituted by the Seller for a Mortgage Loan in the manner set forth in
Section 3 hereof, to and for the benefit of DLJMC, Column, the Depositor, their
affiliates, the Trustee and the Certificateholders, each of the representations
and warranties set forth in Sections 4.01 and 4.02 of the Master Purchase
Agreement as if stated and made on the date of substitution, with any conforming
changes necessary due to the fact that such Replacement Mortgage Loan was not
purchased pursuant to the Master Purchase Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations of the
Seller. Each of the representations and warranties contained and/or referred to
in Section 2 shall survive the transfer of the Mortgage Loans by DLJMC to
Column, by Column to the Depositor and by the Depositor to the Trustee, for the
benefit of the Certificateholders, and shall inure to the benefit of DLJMC and
its successors and assigns (the holder(s) of any Mortgage Loan or related REO
Property, including, without limitation, the Trustee for the benefit of the
Certificateholders, being herein referred to as the "Owner" thereof),
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
assignment of Mortgage or DLJMC's, Column's, the Depositor's or the Trustee's
examination of any Mortgage File. Upon discovery by either the Seller or the
related Owner of a breach of any of the foregoing representations and warranties
with respect to any Mortgage Loan or REO Property that materially and adversely
affects the value of such Mortgage Loan or related REO Property or the interest
of the related Owner therein (any such breach, a "Material Breach"), the party
discovering such breach shall give prompt written notice to the other.
Within sixty (60) days of the earlier of either discovery by or notice to
the Seller of any Material Breach (other than a Material Breach involving any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Purchase Agreement), the
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Seller shall use its best efforts to cure such Material Breach in all material
respects and, if such Material Breach cannot be cured within such 60-day period,
the Seller shall repurchase the affected Mortgage Loan or REO Property at the
Purchase Price (as defined in the Pooling and Servicing Agreement); provided,
however, that if the Seller's obligation to repurchase such affected Mortgage
Loan or REO Property as described above arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date, if the affected Mortgage Loan or REO Property is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulation Section 1.860G-2(f)), and if the affected Mortgage Loan or
REO Property is then subject to the Pooling and Servicing Agreement and is not a
Mortgage Loan that (or REO Property related to a Mortgage Loan that) had been
substituted for another Mortgage Loan in the manner described hereinbelow, the
Seller may, at its option, in lieu of repurchasing such affected Mortgage Loan
(but in any event no later than such repurchase would have been required to be
completed), (a) replace such affected Mortgage Loan or REO Property with one or
more Qualifying Substitute Mortgage Loans (as defined in the Pooling and
Servicing Agreement) that are approved by Column and pay any corresponding
Substitution Shortfall Amount (as defined in the Pooling and Servicing
Agreement), such substitution and payment to be effected in accordance with the
terms of the Pooling and Servicing Agreement, and (b) deliver a certification to
the Trustee to the effect that such substitute mortgage loan satisfies or such
substitute mortgage loans satisfy, as the case may be, all of the requirements
of the definition of "Qualifying Substitute Mortgage Loan" in the Pooling and
Servicing Agreement. The Seller may request that the related Owner extend the
60-day period referenced above within which the Seller must cure, repurchase or
replace a Mortgage Loan or REO Property affected by such a Material Breach, to
ninety (90) or more days (but not more than one hundred fifty (150) days)
following the earlier of either discovery by or notice to the Seller of such
Material Breach, by delivering a written request to the related Owner, together
with evidence that the Seller is diligently proceeding to cure such breach and
will require the requested extension to effect such cure; provided, however,
that the related Owner may determine to accept or deny any such request in its
sole discretion, without limitation. For purposes of this section, no such
request shall be deemed to have been accepted by the related Owner unless the
related Owner has affirmatively and expressly stated in writing its acceptance
of such request. If a Material Breach involves any representation or warranty
made pursuant to Section 2 hereof that is set forth in Section 4.01 of the
Master Purchase Agreement and such Material Breach cannot be cured within ninety
(90) days of the earlier of either discovery by or notice to the Seller of such
Material Breach, any or all of the Mortgage Loans and/or related REO Properties
shall, at the option of the related Owner, be repurchased by the Seller at the
Purchase Price (with no option to substitute). Any repurchase of Mortgage Loans
and/or REO Properties or payment of any Substitution Shortfall Amount pursuant
to the foregoing provisions of this Section 3 shall be accomplished by wire
transfer of immediately available funds in the amount of the Purchase Price or
Substitution Shortfall Amount, as applicable, pursuant to wiring instructions
furnished by the related Owner to the Seller.
At the time of the repurchase of or substitution for any Mortgage Loan or
REO Property as contemplated by the preceding paragraph, the related Owner and
Seller shall arrange for
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<PAGE>
the reassignment of such Mortgage Loan or the conveyance of such REO Property,
as the case may be, to the Seller and the delivery to the Seller of any
documents held by or on behalf of the related Owner relating to such Mortgage
Loan or REO Property, as the case may be. With respect to each Mortgage Loan and
REO Property to be repurchased or replaced as contemplated by the preceding
paragraph, at the time the Purchase Price or Substitution Shortfall Amount, as
applicable, is wire transferred to or at the direction of the related Owner, the
Seller shall, simultaneously with the initiation of such wire transfer, give
written notice to the related Owner that such wire transfer has been initiated.
In addition to such cure and repurchase or substitution obligation, the
Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses incurred in
connection with any claim, demand, defense, or assertion based on or grounded
upon, or resulting from, a breach by the Seller of the representations and
warranties made pursuant to Section 2 hereof. The obligations of the Seller set
forth in this Section 3 to cure or to repurchase or replace a defective Mortgage
Loan or REO Property and to indemnify the related Owner as provided in this
Section 3 constitute the sole remedies of the related Owner respecting a breach
of such representations and warranties made pursuant to Section 2 hereof.
SECTION 4. Indemnification. The Seller will indemnify and hold harmless
DLJMC, Column, their affiliates, and each Person, if any, who controls DLJMC or
Column within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"; and all of the foregoing Persons, collectively, "DLJ"),
against any losses, claims, damages or liabilities to which DLJ may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (each, a "Liability")
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact provided by the Seller to DLJ ("Seller Information") which
is contained in the prospectus, private placement memorandum and/or other
disclosure document or any amendment or supplement thereto (each, an "Offering
Document") relating to the offering of any securities evidencing ownership
interests in the Mortgage Loans or which arise out of or are based upon any
omission or alleged omission to state in such Offering Document a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
will reimburse DLJ for any legal or other expenses reasonably incurred by DLJ in
connection with investigating or defending any such Liability; provided,
however, that the Seller shall not be liable in any such case to the extent and
only to the extent that any Liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in an
Offering Document in reliance upon and in conformity with information provided
by or on behalf of any Person other than the Seller. DLJMC hereby agrees to
indemnify the Seller for any Liability arising out of or based upon Seller
Information which is not accurately reflected in any Offering Document.
(a) Promptly after receipt by a party with a right to indemnification under
this section (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified
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<PAGE>
Party will, if a claim in respect thereof is to be made against a party with an
indemnification obligation under this section (the "Indemnifying Party"), notify
the Indemnifying Party of the commencement thereof; but the omission so to
notify the Indemnifying Party will not relieve the Indemnifying Party from any
liability which it may have to any Indemnified Party otherwise than under this
section. In case any such action is brought against an Indemnified Party, and it
notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof, with counsel satisfactory to such Indemnified Party; provided,
however, that, if the defendants in any such action include both the Indemnified
Party and the Indemnifying Party, and if the Indemnified Party shall have
reasonably considered that there may be legal defenses available to it and/or
other Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, the Indemnified Party or Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Parties. Upon receipt of notice by such Indemnified Party
of the Indemnifying Party's election to so assume the defense of such action and
approval by such Indemnified Party of counsel, the Indemnifying Party will not
be liable to such Indemnified Party under this section for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof unless (i) the Indemnified Party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the preceding sentence (it being understood, however, that the
Indemnifying Party shall not be liable for the expenses of more than one
separate counsel), (ii) the Indemnifying Party shall not have employed counsel
satisfactory to the Indemnified Party within a reasonable period after notice of
commencement of the action or (iii) the Indemnifying Party has authorized the
employment of counsel for the Indemnified Party at the expense of the
Indemnifying Party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in clause (i) or
(iii).
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and DLJMC on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and DLJ in such proportions that DLJ is responsible for its pro rata
portion of such losses, liabilities, claims, damages and expenses determined in
accordance with the ratio that the (i) difference between the aggregate purchase
price paid to the Seller by DLJMC for the Mortgage Loans and the aggregate
resale price received by DLJMC, bears to (ii) the aggregate resale price
received by DLJMC, and the Seller shall be responsible for the balance;
provided, however, that no Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this section, each Person, if any, who
controls DLJ within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as DLJ.
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<PAGE>
SECTION 5. Assignment of this Seller's Warranty Certificate. The rights and
obligations of the Seller under this Seller's Warranty Certificate may not be
assigned, pledged or hypothecated by the Seller without the consent of DLJMC and
its successors and assigns; except that any Person into which the Seller may be
merged or consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Seller shall be a party, or any Person succeeding to
the business of the Seller, shall be the successor of the Seller 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. The
rights and obligations of DLJMC under this Seller's Warranty Certificate may,
however, be assigned in whole or in part by DLJMC and its successors and assigns
in connection with any transfer of one or more Mortgage Loans. Without limiting
the generality of the foregoing, the Seller hereby acknowledges and approves the
assignments contemplated in the Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary Provisions in
Master Purchase Agreement. This Seller's Warranty Certificate supersedes any
contrary provisions of the Master Purchase Agreement, and constitutes an
amendment of such contrary provisions, insofar as (but only insofar as) such
contrary provisions of the Master Purchase Agreement relate to the Mortgage
Loans. The rights and obligations of the Seller and DLJMC under the Master
Purchase Agreement are otherwise unaffected, and the provisions of the Master
Purchase Agreement otherwise remain in full force and effect.
SECTION 7. Description of the Seller. In connection with the offering of
the Certificates pursuant to the Offering Documents, the Seller authorizes the
inclusion in the Offering Documents of the description of the Seller, attached
as Exhibit A hereto, and hereby represents and warrants that such description
does not contain any material misstatements of fact.
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<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed by its duly
authorized officer as of the date first above written.
UNION CAPITAL INVESTMENTS, LLC
By:___________________________
Name:
Title:
Acknowledged and Accepted:
DLJ MORTGAGE CAPITAL, INC.
By:____________________________
Name:
Title:
<PAGE>
EXHIBIT A
Union Capital Investments LLC. Union Capital is a limited liability
company, with its principal office in Atlanta, Georgia. Union Capital is
primarily involved in conduit lending, and it originates, underwrites and closes
first mortgage loans secured by all types of multifamily and commercial real
estate throughout the United States. The principals of Union Capital have been
involved in the conduit lending field since January 1993.
<PAGE>
SCHEDULE 1
Mortgage Loan Schedule
<PAGE>
EXHIBIT O
SCHEDULE OF DESIGNATED ARD LOANS
1. The Winston Loan: consisting of the following fourteen (14) properties:
Hampton Inn - Elmsford
Quality Suites - Charleston
Courtyard by Marriott - Ann Arbor
Residence Inn - Phoenix
Homewood Suites - Cary
Hampton Inn & Suites - Gwinnett
Hampton Inn - Raleigh
Comfort Suites - Orlando
Hampton Inn - Perimeter
Hampton Inn - Charlotte, NC
Courtyard by Marriott - Wilmington
Hampton Inn - West Springfield
Homewood Suites - Clear Lake
Comfort Inn - Charleston
2. The Swerdlow Loans: consisting of the following three (3) properties:
Kendale Lakes Plaza
Cypress Creek Station
Oakwood Business Center
O-1
<PAGE>
EXECUTION COPY
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
UNDERWRITING AGREEMENT
March 15, 1999
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
underwriters named in Schedule I hereto (the "Underwriters"; provided, however,
that if you are the only underwriter named in Schedule I, then the terms
"Underwriter" and "Underwriters" shall refer solely to you), for whom Donaldson.
Lufkin & Jenrette Securities Corporation acts as representative (in such
capacity, the "Representative") those classes (each, a "Class") of its
Commercial Mortgage Pass-Through Certificates, Series 1999-CG1, specified in
Schedule II hereto (the "Offered Certificates"). The Offered Certificates will
be issued pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") to be dated as of March 1, 1999 (the "Cut-off Date"),
among the Company, as depositor, GE Capital Loan Services, Inc., as master
servicer (the "Master Servicer"), Banc One Mortgage Capital Markets, LLC, as
special servicer (the "Special Servicer"), and Norwest Bank Minnesota, National
Association, as trustee (in such capacity, the "Trustee") and as REMIC
administrator (in such capacity, the "REMIC Administrator"). The Offered
Certificates will evidence undivided interests in a trust fund (the "Trust
Fund") to be established by the Company pursuant to the Pooling and Servicing
Agreement. The Trust Fund will consist primarily of a pool (the "Mortgage Pool")
of conventional, monthly pay, commercial and multifamily mortgage loans (the
"Mortgage Loans") transferred by the Company to the Trust Fund and listed in an
attachment to the Pooling and Servicing Agreement. Three real estate mortgage
investment conduit ("REMIC") elections are to be made with respect to the Trust
Fund with the resulting REMICs being referred to as "REMIC I", "REMIC II" and
"REMIC III", respectively. The Class B-3, Class B-4, Class B-5, Class B-6, Class
B-7, Class B-8, Class C, Class D-1, Class D-2, Class R-I, Class R-II and Class
R-III Certificates (collectively with the Offered Certificates, the
"Certificates") are also to be issued pursuant to the Pooling and Servicing
Agreement but do not form a part of this offering. The Offered Certificates are
described more fully in the Basic Prospectus and the Prospectus Supplement
<PAGE>
(each of which terms is defined below) which the Company is furnishing to you.
Capitalized terms used but not otherwise defined herein will have the respective
meanings assigned thereto in the Prospectus Supplement.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-59167) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of the
Offered Certificates, which registration statement has become effective and
copies of which have heretofore been delivered to you. Such registration
statement meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with such Rule. The Company proposes to
file with the Commission pursuant to Rule 424 under the Act a supplement, dated
the date specified in Schedule II hereto, to the prospectus, dated the date
specified in Schedule II hereto, relating to the Offered Certificates and the
method of distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Offered Certificates set
forth therein. Such registration statement, including the exhibits thereto, as
amended at the date hereof is hereinafter called the "Registration Statement";
such prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Basic
Prospectus"; such supplement to the Basic Prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the
Prospectus Supplement together are hereinafter called the "Prospectus". Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 402(a) or Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement". The Company will not, without your prior consent, file
any other amendment to the Registration Statement or make any change in the
Basic Prospectus or the Prospectus Supplement until after the end of the period
during which a prospectus is required to be delivered to purchasers of the
Offered Certificates under the Act. The Company, as depositor with respect to
the Trust Fund, will file with the Commission within fifteen days of the
issuance of the Offered Certificates a report on Form 8-K setting forth specific
information concerning the Offered Certificates (the "Form 8-K").
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule 424
under the Act, when, prior to the Closing Date, any other amendment to the
Registration Statement becomes effective, when any supplement to the Prospectus
Supplement is filed with the Commission, and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complied or will comply in all
material respects with the applicable requirements of the Act and the rules
thereunder, (ii) the Registration Statement, as amended as of any such time, did
not and will not contain any untrue statement of a material fact and did not and
will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and will not
contain an untrue statement of a material fact and did not and will not
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<PAGE>
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
(A) the information contained in or omitted from the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the preparation thereof,
or (B) the information contained in or omitted from any Current Report (as
defined in Section 5(b) hereof), or any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the Prospectus (or
any amendment thereof or supplement thereto).
(c) The Company is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full power and
authority (corporate and other) to own its properties and conduct its business,
as described in the Prospectus, and to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement, and is conducting
its business so as to comply in all material respects with all applicable
statutes, ordinances, rules and regulations of the jurisdictions in which it is
conducting business.
(d) The Company is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) At or prior to the Closing Date, the Company will have entered into the
Pooling and Servicing Agreement; this Agreement has been duly authorized,
executed and delivered by the Company, and the Pooling and Servicing Agreement,
when delivered by the Company, will have been duly authorized, executed and
delivered by the Company, and this Agreement and the Pooling and Servicing
Agreement will constitute valid and binding agreements of the Company,
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
moratorium, receivership, reorganization or similar laws affecting the rights of
creditors generally, (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of any provisions of this
Agreement which purport to provide indemnification from securities law
liabilities.
(f) The Offered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus; the Offered Certificates have been duly and validly authorized by
the Company, and will, when duly and validly executed and authenticated by the
Trustee and delivered to and paid for by the Underwriters in accordance with
this Agreement and the Pooling and Servicing Agreement, be entitled to the
benefits of the Pooling and Servicing Agreement.
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<PAGE>
(g) As of the Closing Date, the representations and warranties of the
Company set forth in Section 2.04 of the Pooling and Servicing Agreement will be
true and correct.
(h) Neither the issuance and sale of the Offered Certificates, nor the
consummation of any other of the transactions contemplated herein, nor the
fulfillment of any of the terms of the Pooling and Servicing Agreement or this
Agreement, will result in the breach of any term or provision of the certificate
of incorporation or by-laws of the Company or conflict with, result in a
material breach, violation or acceleration of or constitute a default under, the
terms of any indenture or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it is bound, or any statute,
order or regulation applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company or any of its subsidiaries. Neither the Company
nor any of its subsidiaries is a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects the ability of the Company to perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(i) There are no actions or proceedings against, or investigations of, the
Company pending, or, to the knowledge of the Company, threatened, before any
court, administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement or the Offered Certificates,
(ii) seeking to prevent the issuance of the Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus.
(j) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Company to perform its obligations under
the Pooling and Servicing Agreement.
(k) There are no contracts, indentures or other documents of a character
required by the Act or by the rules and regulations thereunder to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so described or
referred to therein or so filed or incorporated by reference as exhibits
thereto.
(l) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Offered Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Offered
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<PAGE>
Certificates by the Underwriters and any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not been completed.
(m) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(n) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the Pooling
and Servicing Agreement or the issuance and sale of the Certificates (other than
such federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing Date.
(o) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal or notional amount of each
class of the Offered Certificates set forth opposite each such Underwriter's
name in Schedule I hereto.
The purchase price for each Class of the Offered Certificates as a
percentage of the aggregate principal (or notional) amount thereof as of the
Closing Date (as defined below) is set forth in Schedule II hereto. There will
be added to the purchase price of the Offered Certificates interest in respect
of each Class of the Offered Certificates at the interest rate applicable to
such Class from the Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale of the
Offered Certificates contemplated hereby (the "Closing"), shall be made at the
date, location and time of delivery set forth in Schedule II hereto, or such
later date as shall be mutually acceptable to the Underwriters and the Company
(such date and time of purchase and sale of the Offered Certificates being
herein called the "Closing Date"). Delivery of the Offered Certificates will be
made in book-entry form through the facilities of The Depository Trust Company
("DTC"). Each class of Offered Certificates will be represented by one or more
definitive global Certificates to be deposited by or onbehalf of the Company
with DTC. Delivery of the Offered Certificates shall be made to the several
Underwriters against payment by the several Underwriters of the purchase price
thereof to
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<PAGE>
or upon the order of the Company by wire transfer of immediately available funds
or by such other method as may be acceptable to the Company.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Certificates for sale to the public as set forth in
the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will promptly advise the Underwriters (i) when, during any
period that a prospectus relating to the Offered Certificates is required to be
delivered under the Act, any amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or the Prospectus or for any additional information
affecting or in respect of the Offered Certificates, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement affecting the Offered Certificates or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will not file any
amendment to the Registration Statement or supplement to the Prospectus unless
the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object until after the period in which a prospectus is required to be delivered
to purchasers of the Offered Certificates under the Act. Subject to the
foregoing sentence, the Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said Rule. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company will cause any Computational Materials and Structural Term
Sheets (each as defined in Section 9 below) with respect to the Offered
Certificates that are delivered by an Underwriter to the Company pursuant to
Section 9 to be filed with the Commission on a Current Report on Form 8-K (a
"Current Report") pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
an Underwriter prior to 10:30 a.m. (New York City time) and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Reportpursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the day on which such Collateral Term Sheet is delivered
to counsel for the Company by the Underwriters
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<PAGE>
prior to 10:30 a.m. (New York City time). In addition, if at any time prior to
the availability of the Prospectus Supplement, the Underwriters have delivered
to any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans from those on which a Collateral
Term Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet that
is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to 10:30
a.m. (New York City time). In each case, the Company will promptly advise the
Representative when such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing provisions of this Section 5(b), the
Company shall have no obligation to file any materials provided by the
Underwriters pursuant to Section 9 which, in the reasonable determination of the
Company, are not required to be filed pursuant to the Kidder Letters or the PSA
Letter (each as defined in Section 9 below), or contain erroneous information or
contain any untrue statement of a material fact or, when read in conjunction
with the Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any Computational Materials or ABS Term Sheets (as defined in Section 9 below)
provided by the Underwriters to the Company pursuant to Section 9 hereof. The
Company shall give notice to the Representative of its determination not to file
any materials pursuant to the preceding sentence and agrees to file such
materials if the Underwriters reasonably object to such determination within one
business day after receipt of such notice.
(c) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the rules under the Act, the Company
promptly will prepare and file with the Commission, subject to paragraph (a) of
this Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such amendment
or supplement is required to be contained in a post-effective amendment to the
Registration Statement, will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible; provided,
however, that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials or ABS Term Sheets
incorporated by reference in the Prospectus other than any amendments or
supplements of such Computational Materials or ABS Term Sheets that are
furnished to the Company pursuant to Section 9 hereof which the Company
determines to file in accordance therewith.
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(d) The Company will furnish to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery by an
Underwriter or dealer of a prospectus relating to the Offered Certificates may
be required by the Act, as many copies of the Basic Prospectus, the Preliminary
Prospectus Supplement, if any, and the Prospectus Supplement and any amendments
and supplements thereto as the Underwriters may reasonably request.
(e) The Company agrees that, so long as the Offered Certificates shall be
outstanding, it will deliver or cause to be delivered to the Underwriters the
annual statements as to compliance and the annual statements of a firm of
independent public accountants, furnished to the Trustee by the Master Servicer
and the Special Servicer pursuant to Sections 3.13 and 3.14 of the Pooling and
Servicing Agreement, as soon as such statements are furnished to the Company.
(f) The Company will furnish such information, execute such instruments and
take such action, if any, as may be required to qualify the Offered Certificates
for sale under the laws of such jurisdictions as the Representative may
designate and will maintain such qualification in effect so long as required for
the distribution of the Offered Certificates; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
(g) The Company will pay all costs and expenses in connection with the
transactions contemplated hereby, including, but not limited to, the fees and
disbursements of its counsel; the costs and expenses of printing (or otherwise
reproducing) and delivering the Pooling and Servicing Agreement and the Offered
Certificates; accounting fees and disbursements; the costs and expenses in
connection with the qualification or exemption of the Offered Certificates under
state securities or blue sky laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, in connection with the
preparation of any Blue Sky Survey and in connection with any determination of
the eligibility of the Offered Certificates for investment by institutional
investors and the preparation of any Legal Investment Survey; the expenses of
printing any such Blue Sky Survey and Legal Investment Survey; the costs and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto), the Basic Prospectus, the
Preliminary Prospectus Supplement, if any, and the Prospectus Supplement, the
preparation and printing of this Agreement, the furnishing to the Underwriters
of such copies of each Preliminary Prospectus Supplement, if any, and Prospectus
Supplement as the Underwriters may reasonably request and the fees of rating
agencies. Except as provided in Section 7 hereof, the Underwriters shall be
responsible for paying all costs and expenses incurred by them in connection
with their purchase and sale of the Offered Certificates, including the fees of
counsel to any Underwriter.
6. Conditions to the Obligations to the Underwriters. The obligations of
the Underwriters to purchase the Offered Certificates as provided in this
Agreement shall be subject to
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the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein as of the date hereof and as of the
Closing Date, to the accuracy in all material respects of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance in all material respects by the Company of its obligations hereunder
and to the following additional conditions with respect to the Offered
Certificates:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened; and the Prospectus Supplement shall have been
filed with the Commission within the time period prescribed by the Commission.
(b) The Underwriters shall have received from the Company a certificate,
dated the Closing Date and executed by an executive officer of the Company, to
the effect that: (i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects at and as of the Closing
Date with the same effect as if made on the Closing Date; and (ii) the Company
has in all material respects complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(c) The Underwriters shall have received with respect to the Company a good
standing certificate from the Secretary of State of the State of Delaware, dated
not earlier than 30 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of the Company, signed this Agreement, the Pooling and Servicing
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Pooling and Servicing Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine signatures; and
(ii) no event (including, without limitation, any act or omission on the part of
the Company) has occurred since the date of the good standing certificate
referred to in paragraph (c) above which has affected the good standing of the
Company under the laws of the State of Delaware. Such certificate shall be
accompanied by true and complete copies (certified as such by the Secretary or
an assistant secretary of the Company) of the certificate of incorporation and
by-laws of the Company, as in effect on the Closing Date, and of the resolutions
of the Company and any required shareholder consent relating to the transactions
contemplated in this Agreement and the Pooling and Servicing Agreement.
(e) The Underwriters shall have received from Sidley & Austin, counsel for
the Company, a favorable opinion, dated the Closing Date and reasonably
satisfactory in form and substance to counsel for the Representative, to the
effect that:
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(i) The Registration Statement has become effective under the 1933 Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and not withdrawn,
and no proceedings for that purpose have been instituted or threatened and not
terminated.
(iii) The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel need express no
opinion), complied as to form in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no material contracts,
indentures or other documents relating to the Offered Certificates of a
character required to be described or referred to in the Registration Statement
or the Prospectus Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly existing as a corporation
in good standing under the laws of the State of Delaware and has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Company.
(vii) Each of this Agreement and the Pooling and Servicing Agreement
constitutes a valid, legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors generally, (B) general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws to the extent that the same limit
the enforceability of any provisions of this Agreement that purport or are
construed to provide indemnification with respect to securities law violations.
(viii) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement, will be entitled to
the benefits of the Pooling and Servicing Agreement.
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<PAGE>
(ix) Neither the sale of the Offered Certificates to the Underwriters
pursuant to this Agreement nor the consummation of any of the transactions
contemplated by or the fulfillment by the Company of the terms of this Agreement
and the Pooling and Servicing Agreement, will conflict with or result in a
breach or violation of any term or provision of the certificate of incorporation
or by-laws of the Company, or any federal or State of New York statute or
regulation, or any order known to such counsel of any federal or State of New
York court or agency or other governmental body having jurisdiction over the
Company, except such counsel need express no opinion as to compliance with the
securities laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the Offered Certificates
by the Underwriters.
(x) No consent, approval, authorization or order of any federal or State of
New York court, agency or other governmental body is required for the
consummation by the Company of the transactions contemplated by the terms of
this Agreement and the Pooling and Servicing Agreement, except such as may be
required under the securities laws of the State of New York and other particular
States in connection with the purchase and the offer and sale of the Offered
Certificates by the Underwriters as to which such counsel need express no
opinion, and except such as have been obtained.
(xi) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust Fund is not
required to be registered under the Investment Company Act of 1940, as amended.
(xii) The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "Servicing of the
Mortgage Loans" and in the Basic Prospectus under the headings "Description of
the Certificates" and "Description of the Pooling Agreements", insofar as such
statements purport to summarize certain material provisions of the Certificates
and the Pooling and Servicing Agreement, provide a fair and accurate summary of
such provisions.
(xiii) The statements set forth in the Prospectus Supplement under the
headings "Certain ERISA Considerations", "Federal Income Tax Consequences" and
"Legal Investment", and in the Basic Prospectus under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal Investment", to
the extent that they purport to describe certain matters of federal law or legal
conclusions with respect thereto, while not discussing all possible consequences
of an investment in the Offered Certificates to all investors, provide a fair
and accurate summary of such matters and conclusions set forth under such
headings.
(xiv) As described in the Prospectus Supplement, and assuming compliance
with all the provisions of the Pooling and Servicing Agreement, (A) REMIC I will
qualify as a real estate mortgage investment conduit (a "REMIC") within the
meaning of Sections 860A through 860G of the Internal Revenue Code of 1986 in
effect on the date hereof (the
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<PAGE>
"REMIC Provisions") and the REMIC I Regular Interests (as defined in the Pooling
and Servicing Agreement) will be "regular interests" and the Class R-I
Certificates will evidence the sole class of "residual interests" in REMIC I (as
both terms are defined in the REMIC Provisions in effect on the Closing Date),
(B) REMIC II will qualify as a REMIC within the meaning of the REMIC Provisions,
and the REMIC II Regular Interests (as defined in the Pooling and Servicing
Agreement) will be "regular interests" and the Class R-II Certificates will
evidence the sole class of "residual interests" in REMIC II, and (C) REMIC III
will qualify as a REMIC within the meaning of the REMIC Provisions, and the
Class S, Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8 and
Class C Certificates will evidence "regular interests" and the Class R-III
Certificates will evidence the sole class of "residual interests" in REMIC III.
(xv) Assuming compliance with all the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and corporation
franchise tax purposes: (A) REMIC I, REMIC II and REMIC III will each be
classified as a REMIC, and not as a corporation, partnership or trust, in
conformity with the federal income tax treatment of REMIC I, REMIC II and REMIC
III, respectively; and (B) the Trust Fund will be exempt from all City and State
of New York taxation imposed on its income, franchise or capital stock, and its
assets will not be included in the calculation of any City or State of New York
franchise tax liability.
(xvi) The portions of the Trust Fund consisting of Grantor Trust D-1 and
Grantor Trust D-2 (each as defined in the Prospectus Supplement) will each be
classified as a grantor trust under subpart E, part I of subchapter J of the
Internal Revenue Code of 1986.
Such opinion (x) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement and the Pooling and Servicing Agreement, (y)
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Company, and
(z) may be qualified as an opinion only on the law of the State of New York, the
federal law of the United States of America and the General Corporation Law of
the State of Delaware.
Based on such counsel's participation in conferences with officers and
other representatives of the Company and of the Master Servicer and Special
Servicer, the Trustee, the REMIC Administrator, the Underwriters and their
respective counsel, at which the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel need not pass upon or
assume responsibility for the actual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiii) above) and need not make an independent
check or verification thereof for the purpose of rendering this opinion, on the
basis of the foregoing, such counsel shall also confirm that nothing has come to
the attention of such counsel that would lead such counsel to believe that the
Prospectus,
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as of the date of the Prospectus Supplement and at the Closing Date, contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom, (y) the documents incorporated
therein, and (z) the information included therein or omitted therefrom relating
to the characteristics of the Mortgage Loans acquired by the Company from GE
Capital Access, Inc. ("GECA"; and such Mortgage Loans, the "GECA Mortgage
Loans"), as to which such counsel need express no opinion). Insofar as questions
of materiality are involved in the foregoing opinion, such counsel may as to
factual matters necessary to the determination of materiality rely upon
certificates and other information provided by officers and other
representatives to the Company and as to determinations of materiality, may seek
in the first instance and rely where such counsel concludes such reliance is
justifiable, on the view of officers and other representatives of the Company.
(f) The Underwriters shall have received from GECA's counsel, one or more
letters, dated the Closing Date, and reasonably satisfactory in form and
substance to counsel for the Underwriters, to the effect that, based on such
counsel's participation in conferences with officers and other representatives
of the Company, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Underwriters and their respective counsel, at which the
contents of the Prospectus Supplement were discussed and, although such counsel
need not pass upon or assume responsibility for the actual accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement and need not make an independent check or verification thereof for
the purpose of rendering this opinion, nothing has come to the attention of such
counsel that would lead such counsel to believe that the Prospectus Supplement,
as of the date of the Prospectus Supplement and at the Closing Date, insofar as
it relates to the characteristics of the GECA Mortgage Loans, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than financial
statements, schedules and other numerical, financial and statistical data
included therein or omitted therefrom and the documents incorporated therein, as
to which such counsel need express no opinion). Insofar as questions of
materiality are involved in the foregoing opinion, such counsel may as to
factual matters necessary to the determination of materiality rely upon
certificates and other information provided by officers and other
representatives to GECA and as to determinations of materiality, may seek in the
first instance and rely where such counsel concludes such reliance is
justifiable, on the view of officers and other representatives of GECA.
(g) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the REMIC Administrator and the Trustee,
a favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set forth in
Section 6(e)(vii), the enforceability of the Pooling and Servicing Agreement
against such party. Such opinion may express its reliance as to factual matters
on representations and warranties made by, and
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<PAGE>
on certificates or other documents furnished by officers and/or authorized
representatives of parties to, this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the General Corporation Law of the State of Delaware (if
relevant), the laws of the State of New York and of each other state in which
the writer of the opinion is admitted to practice law and the federal law of the
United States.
(h) The Underwriters shall have received from Arthur Andersen LLP,
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Representative and counsel for the Underwriters
stating in effect that using the assumptions and methodology used by the
Company, all of which shall be described in such letter, they have recalculated
such numbers and percentages set forth in the Prospectus as the Underwriters may
reasonably request and as are agreed to by Arthur Andersen LLP, compared the
results of their calculations to the corresponding items in the Prospectus, and
found each such number and percentage set forth in the Prospectus to be in
agreement with the results of such calculations.
(i) The Underwriters shall have received all opinions, certificates and
other documents required to be delivered by the respective Mortgage Loan Sellers
and their counsel in connection with their sales of Mortgage Loans to the
Company, and each such opinion shall be dated the Closing Date and addressed to
the Underwriters.
(j) The Underwriters shall have received all opinions rendered to the
Rating Agencies by counsel to the Company and the Mortgage Loan Sellers, and
each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(k) The Offered Certificates listed on Schedule II hereto shall have been
rated as indicated on such Schedule by the rating agency or agencies indicated.
(l) All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto and thereto, shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such additional information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided by this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or by
either telegraph or telecopier confirmed in writing.
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7. Reimbursement of Underwriters' Expenses. If the sale of any Offered
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of such Offered
Certificates.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of the Act or the
Exchange Act of 1934, as amended (the "Exchange Act"), against claims, damages,
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any part of the Registration Statement when such part became
effective, or in the Registration Statement, any Preliminary Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission (in the case of any
Computational Materials or ABS Term Sheets (as defined in Section 9 below) in
respect of which the Company agrees to indemnify any Underwriter or any such
controlling person, as set forth below, when such are read in conjunction with
the Prospectus) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
against such loss, claim, damage, liability, or action; provided, however, that
(i) the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made (A)
therein in reliance upon and in conformity with written information furnished to
the Company by any Underwriter directly or through another Underwriter
specifically for use in the preparation thereof or (B) in any Current Report or
any amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission therefrom results (or
is alleged to have resulted) directly from an error (a "Collateral Error") in
the information concerning the characteristics of the Mortgage Loans furnished
by the Company to an Underwriter in writing or by electronic transmission that
was used in the preparation of any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to prospective investors, (ii)
such indemnity with respect to any Preliminary Prospectus Supplement shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Certificates which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in such
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Preliminary Prospectus Supplement was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and (iii) such indemnity with respect to
any Collateral Error shall not inure to the benefit of any Underwriter or any
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials or ABS Term
Sheets that were prepared on the basis of such Collateral Error, if, prior to
the time of confirmation of the sale of the applicable Offered Certificates to
such person, the Company notified such Underwriter in writing of the Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any such case, a "Corrected Collateral
Error"), and such Underwriter failed to notify such person thereof or to deliver
to such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information was contained in the Prospectus, failed to
deliver to such person the Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to (i) written information relating to such Underwriter furnished to
the Company by such Underwriter directly or through another Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity, or (ii) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) delivered to prospective investors by such
Underwriter and furnished to the Company by such Underwriter pursuant to or as
contemplated by Section 9 and incorporated by reference in the Registration
Statement, any Preliminary Prospectus Supplement or the Prospectus or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof, resulting from any Collateral Error, other than a Corrected Collateral
Error). This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements set
forth in the first two sentences of the last paragraph of the cover page and the
first sentence of the first paragraph and first sentence of the third paragraph
under the heading "Method of Distribution" in the Prospectus Supplement and any
Preliminary Prospectus Supplement constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any Computational
Materials or ABS Term Sheets furnished to the Company by any Underwriter), and
you confirm that such statements are correct. Any Computational Materials or ABS
Term Sheets (or amendments or supplements thereof) furnished to the Company by a
particular Underwriter shall relate exclusively to and be the several
responsibility of such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under paragraph (a) or
(b) of this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under paragraph (a) or (b) of this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the omission
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so to notify the indemnifying party will not relieve it from any liability which
it may have to anyindemnified party otherwise than under paragraph (a) or (b),
as applicable, of this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (which may be counsel representing the indemnifying party); provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by you in the case of paragraph (a) of this Section 8 and by the
Company in the case of paragraph (b) of this Section 8, representing the
indemnified parties under such paragraph (a) or (b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under paragraph (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages, or
liabilities referred to in paragraph (a) or (b) above as follows:
-17-
<PAGE>
(i) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which do not arise out of or are not based upon any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact in any Computational Materials or ABS
Term Sheets (or any amendments or supplements thereof), in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount and
the purchase price of the Offered Certificates specified in Schedule I hereto
and the Company is responsible for the balance; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Offered Certificates) be
responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Certificates purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact or any omission or alleged omission
to state a material fact in any Computational Materials or ABS Terms Sheets (or
any amendments or supplements thereof), in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statement or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact in such Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof) results from information prepared by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the preceding sentence of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
liability it or they may have otherwise than under this paragraph (d).
-18-
<PAGE>
9. Computational Materials and ABS Term Sheets. (a) Not later than 10:30
a.m., New York City time, on the date hereof, the Underwriters shall deliver to
the Company and its counsel, as provided below, a complete copy of all materials
provided by the Underwriters to prospective investors in the Offered
Certificates which constitute either (i) "Computational Materials" within the
meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Kidder, Peabody Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated, and Kidder Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Kidder Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Kidder Letters, the "No- Action Letters"),
if the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its counsel
pursuant to this paragraph (a) shall be made in paper form and, in the case of
ABS Term Sheets, electronic format suitable for filing with the Commission.
(b) Each underwriter represents and warrants to and agrees with the
Company, as of the date hereof and as of the Closing Date, as applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets to
potential investors in the Offered Certificates prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the PSA Letter, then in each such case such
Underwriter delivered to the Company and its counsel, in the manner
contemplated by Section 9(a), a copy of such materials no later than 10:30
a.m., New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to prospective
investors in the Offered Certificates prior to the date hereof, except for
any preliminary prospectus with respect to the Offered Certificates and any
Computational Materials and ABS Term Sheets with respect to the Offered
Certificates which are not required to be filed with the Commission in
accordance with the No-Action Letters, and all Computational Materials and
ABS Term Sheets provided by such Underwriter to potential investors in the
Offered Certificates comply with the requirements of the No-Action Letters;
-19-
<PAGE>
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Offered Certificates referred to in
Section 9(b)(ii) were last furnished by such Underwriter to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact, or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective
investor and on the date hereof, the Underwriters possessed, and on the
date of delivery of such materials to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, the Underwriters
will possess, the capability, knowledge, expertise, resources and systems
of internal control necessary to ensure that such Computational Materials
and/or ABS Term Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to potential investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except
in the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets; and
(vi) on and after the date hereof, such Underwriter shall not deliver
or authorize the delivery of any Computational Materials, ABS Term Sheets
or other materials relating to the Offered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters agree that all Computational Materials and ABS Term
Sheets with respect to the Offered Certificates furnished to prospective
investors will contain a legend generally to the effect that the Company has not
participated in the preparation of or authorized the distribution of such
Computational Materials or ABS Term Sheets.
-20-
<PAGE>
(d) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, it shall be necessary in the opinion
of the Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules thereunder,
the Underwriters, at their expense (such expense to be allocated between them
based on the relative fault of the Underwriters) (or, if such amendment or
supplement is necessary due to a Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error), at the
expense of the Company), shall prepare and furnish to the Company for filing
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and shall
distribute such amendment or supplement to each prospective investor in the
Offered Certificates that received such information being amended or
supplemented. Each Underwriter represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d)) or (ii) such filing is not required under the Act. Each
Underwriter represents and warrants to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
Notwithstanding the foregoing, none of the Underwriters make any representation
or warranty as to whether any such amendment or supplement of Computational
Materials or ABS Term Sheets with respect to the Offered Certificates included
or will include any untrue statement resulting directly from any Collateral
Error (except any Corrected Collateral Error, with respect to materials prepared
after the receipt by the Underwriters from the Company of notice of such
Corrected Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(e) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, it shall be necessary in the opinion
of the Company or its counsel to amend or supplement the Prospectus as a result
of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters
-21-
<PAGE>
pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact required, when considered in conjunction with the
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the Act or
the rules thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated between them based on the relative fault
of the Underwriters) (or, if such amendment or supplement is necessary due to a
Collateral Error (except any Corrected Collateral Error, with respect to
materials prepared after the receipt by the Underwriters from the Company of
notice of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error), at the expense of the Company), shall prepare
and furnish to the Company for filing with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Notwithstanding the
foregoing, none of the Underwriters make any representation or warranty as to
whether any such amendment or supplement of Computational Materials or ABS Term
Sheets with respect to the Offered Certificates included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral Error).
(f) The Underwriters (at their own expense) further agree to provide to the
Company any accountants' letters obtained relating to the Computational
Materials and/or ABS Term Sheets, which accountants' letters shall be addressed
to the Company or shall state that the Company may rely thereon; provided that
the Underwriters shall have no obligation to procure any such letter.
10. Substitution of Underwriters. (a) If any Underwriter shall fail to take
up and pay for the amount of the Offered Certificates agreed by such Underwriter
to be purchased under this Agreement, upon tender of such Offered Certificates
in accordance with the terms hereof, and the amount of the Offered Certificates
not purchased does not aggregate more than 10% of the total amount of the
Offered Certificates set forth in Schedule I hereof, the remaining Underwriters
shall be obligated to take up and pay for the Offered Certificates that the
withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the amount of the
Offered Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Offered Certificates in accordance with the terms hereof, and the amount of
the Offered Certificates not purchased aggregates more than 10% of the total
amount of the Offered Certificates set forth in Schedule I hereto, and
arrangements
-22-
<PAGE>
satisfactory to the remaining Underwriters and the Company for the purchase of
such Certificates by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination the Company
shall not be under any liability to any Underwriter (except to the extent
provided in Section 5(g) and Section 8 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of the Offered
Certificates such Underwriter agreed to purchase hereunder) be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or any other Underwriter by reason
of its failure to take up and pay for Offered Certificates as agreed by such
Defaulting Underwriter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters by notice given to the Company prior to
delivery of and payment for all Offered Certificates if prior to such time (i)
trading in securities of the Company or any affiliate on the New York Stock
Exchange shall have been suspended or limited, or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Underwriters, impractical
to market the Offered Certificates.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Offered Certificates. The provisions of
Sections 7, 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to them at the
addresses set forth on Schedule I hereto (or, in the case of any Underwriter, at
such other address as may be furnished by such Underwriter to the Company in
accordance with this Section 13); or, if sent to the Company will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at 277 Park Avenue, 9th Floor, New York, New York 10172, Attention: N. Dante
LaRocca (or at such other address as may be furnished by the Company to each
Underwriter in accordance with this Section 13).
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
-23-
<PAGE>
15. Applicable Law; Counterparts. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
applicable to agreements made and to be performed entirely in said State. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
-24-
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: ___________________________________
Name:
Title:
Accepted at New York, New York
as of the date first written above.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: _____________________________
Name:
Title:
<PAGE>
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
Donaldson, Lufkin & Jenrette Class S
Securities Corporation
277 Park Avenue
New York, New York 10172
Attention: N. Dante LaRocca
Class A-1A
Class A-1B
Class A-2 $58,887,000
Class A-3 $65,085,000
Class A-4 $18,596,000
Class B-1 $46,489,00
Class B-2 $15,497,00
Merrill Lynch, Pierce, Fenner & Class S $1,239,717,562
Smith Incorporated Class A-1A $218,788,000
250 Vesey Street Class A-1B $686,205,000
New York, New York, 10281
- -----------------
(1) Notional Amount
<PAGE>
SCHEDULE II
Registration Statement No. 333-59167
Basic Prospectus dated March 1, 1999
Prospectus Supplement dated March 15, 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series
1999-CG1, Class S,
Class A-1A, Class A-1B,
Class A-2, Class A-3,
Class A-4, Class B-1
and Class B-2
Cut-off Date: March 1, 1999
Closing: 10:00 a.m. on March 19, 1999
at the offices of
Sidley & Austin
875 Third Avenue
New York, New York 10022
<PAGE>
<TABLE>
<CAPTION>
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
- ----------------- ------------------ ----------------- ----------------- ----------
<S> <C> <C> <C>
Class S $1,239,717,562 1.0980% Aaa/AAA
Class A-1A $218,788,000 6.0800% Aaa/AAA
Class A-1B $686,205,000 6.4600% Aaa/AAA
Class A-2 $58,887,000 6.6000% Aa2/AA
Class A-3 $65,085,000 6.7700% A2/A
Class A-4 $18,596,000 6.9200% A3/A-
Class B-1 $46,489,000 7.4866% Baa2/BBB
Class B-2 $15,497,000 7.4866% Baa3/BBB
</TABLE>
- ----------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will include
accrued interest at the initial Pass-Through Rate therefor on the aggregate
stated or notional amount, as applicable, thereof to be purchased from the
Cut-off Date to but not including the Closing Date.
(3) By each of Moody's Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
<PAGE>
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO 875 THIRD AVENUE WASHINGTON, D.C.
---- NEW YORK, NEW YORK 10022 ----
DALLAS TELEPHONE 212 906 2000 LONDON
---- FACSIMILE 212 906 2021 ----
LOS ANGELES SINGAPORE
----
FOUNDED 1866 TOKYO
WRITER'S DIRECT NUMBER
March 19, 1999
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
Dear Sirs:
Reference is made to the prospectus supplement dated March 15, 1999 (the
"Prospectus Supplement") and the accompanying prospectus (the "Prospectus")
dated March 1, 1999, relating to the offering of eight classes of DLJ Commercial
Mortgage Trust 1999-CG1, Commercial Mortgage Pass-Through Certificates, Series
1999-CG1 (the "Offered Certificates").
We have acted as tax counsel to DLJ Commercial Mortgage Corp. (the
"Company") in connection with the issuance of the Offered Certificates. We have
reviewed the statements under the heading "Federal Income Tax Consequences" in
the Prospectus and the Prospectus Supplement; and, to the extent they constitute
matters of Federal tax law or legal conclusions with respect thereto, we hereby
confirm our opinion that such statements while not discussing all possible
consequences of an investment in the Offered Certificates to all investors, are
correct in all material respects and constitute our opinion regarding such
matters of Federal tax law. In rendering this opinion, we have relied without
independent investigation on the description of the Offered Certificates set
forth in the Prospectus Supplement. We hereby consent to the filing of this
opinion as part of the Company's Registration Statement on Form S-3 (No.
333-59167) as an exhibit to a Current Report on Form 8K.
We assume no obligation to update or supplement this letter to reflect any
facts or circumstances which may hereafter come to our attention with respect to
the opinion expressed above, including any changes in applicable law which may
hereafter occur.
Very truly yours,
/s/ Sidley & Austin
